republic of trinidad and tobago in the high court of...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE Port of Spain
Claim No: CV2016-03211
BETWEEN
RENNIE BISSOON
CLAIMANT
AND
ABSOLUTE TRANSPORT LIMITED
(FORMALLY K&C LOGISTICS LTD)
DEFENDANT
Before the Honourable Madame Justice Margaret Y. Mohammed
Date of Delivery February 25 2019
APPEARANCES:
Mr. Anderson Denny Modeste Attorney at Law for the Claimant.
Mr. Kirk Bengochea instructed by Ms. Sharla Mungroo Attorneys at Law for the
Defendant.
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JUDGMENT
1. The Claimant was employed by the Defendant as a Driver/Salesman on the
18 July, 2014 (“the date of the accident”) and while in the performance of
his duties, he fell off a truck and suffered injuries for which he now claims
damages against the Defendant.
THE PLEADED CASE
2. On the date of the accident the Claimant drove a delivery truck (“the
truck”) to Reynold’s Wholesale and Retail (“Reynold’s Wholesale”) located
at Mausica Road, D’Abadie. The delivery truck was filled to capacity with
cases of beverages which were wrapped with plastic. At Reynold’s
Wholesale, the Claimant commenced off-loading the cases of beverages.
In order to access the stack of beverages, the Claimant had to stand on the
ledge of the tray of the truck which measured approximately 15 feet by 8
inches and which was 3.5 feet above the road. The Claimant also used his
hands to tear away the plastic wrapped around the beverages. As he was
removing the plastic wrapping, it gave way causing him to jerk backwards
which resulted in him falling onto the roadway as he lost his footing. He hit
his buttocks, back, hip and hands and he endured excruciating pain at the
time.
3. The Claimant requested from the Defendant to send a driver to relieve him
from duty but he was told that there were no drivers available. He drove
the truck back to the Defendant’s dispatch location at Endeavour Industrial
Estate, Chaguanas while in intense pain.
4. After returning the truck, the Claimant requested assistance to go to a
doctor but he was told there was no driver available. He used public
transportation and he returned home.
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5. About one month after the accident, the Claimant underwent a MRI and
the report indicated that he sustained injuries to various parts of his back.
He also underwent a number of physiotherapy sessions with Kamla
Ramdath-Cumming, Registered Physiotherapist/Certified Lymphedema
Therapist who recommended a further course of physiotherapy sessions1.
6. Between the date of the accident and 2016 the Claimant visited several
doctors who confirmed his injury to the back, cervical spine and left and
right shoulders.
7. On 27 February, 2016 the Claimant collected a package from the security
booth of his work place and he found a letter dated 26 February, 2016 and
a cheque for twenty-seven thousand dollars ($27,000.00) which he never
cashed. The Claimant was terminated from his employment on 29
February, 2016 and he has since then borne the burden of his medical
expenses.
8. Subsequently, in the same year, the Claimant had two pre-action letters
sent to Mr. Jarryd Rampersadsingh, Director of the Defendant.
9. The Claimant contended that the fall was caused by the negligence of the
Defendant and he seeks an order for damages, costs and interest.
10. It was not disputed by the Defendant that it terminated the Claimant’s
employment on the 29 February, 2016. The Defendant stated in the
interest of compromise and after a mutual decision was made to terminate
the Claimant, an ex gratia payment of $27000.00 was made to him.
1 See reports dated 13 October, 2014 and 14 and 31 January, 2015
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11. The Defendant’s Defence was both on liability and quantum. With respect
to liability, it denied that the Claimant was compelled to stand on the ledge
of the tray of the truck to do his job. It stated that the measurements of
the tray of the truck was 100 inches wide, 24 inches above the road and 5
inches inside and not 15 feet by 8 inches and 3.5 feet above the road as
pleaded by the Claimant.
12. The Defendant contended that the Claimant failed to utilize a practical
approach and reasonable judgment to unwrap the plastic which was
around the beverages and that any injury which he suffered was caused
wholly or in part by his own negligence. The Defendant stated that the
Claimant was provided with safety boots, and back straps and that the task
that the Claimant was required to perform was not of such a complex
nature that it required training and supervision.
13. With respect to quantum of the damages claimed, the Defendant denied
that the Claimant asked for a driver to relieve him after the fall and that he
was told there were no drivers available; and that he asked for assistance
to go to a doctor but was told there was no driver available.
14. The Defendant did not deny that the Claimant obtained a MRI report after
the accident or that he attended and received medical reports from three
doctors and a report from the Physiotherapist. The Defendant stated that
it paid for the Claimant’s medical visits, medical reports and physiotherapy
sessions until his employment ended on 29 February, 2016. However, it
disputed the contents on the said documents on the basis of hearsay
statements. The Defendant pleaded further that the Claimant had a pre-
existing condition as stated in MRI report dated 6 September, 2014.
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15. The Defendant stated that at the time the pre-action letter was issued, Mr.
Jarryd Rampersad ceased to be a Director and his employment with the
Defendant also ceased. The Defendant also stated that it had paid the sum
of $9322.00 to the Claimant as Workmen’s Compensation and deposited
the sum of $53,012.14 to the Registrar of the Supreme Court on 8 October,
2015 pursuant to Sections 9(2) and (3) of the Workmen’s Compensation
Act2.
THE ISSUES
16. The issues which are to be determined are:
(a) Did Defendant fail to provide a safe place of work for the
Claimant?
(b) Did the Claimant contribute to his injuries and if so, to what
degree?
(c) If the Defendant was responsible for the Claimant’s injury, what
quantum of damage should be awarded to the Claimant?
THE WITNESSES
17. At the trial the Claimant gave evidence on his behalf and he called three
other witness namely Ms. Gail Sayres, Mr. Richard Ramdeen and Mr.
Richard Agostini. The Defendant’s witnesses were Mr. Shawn Heera and
Ms. Shakti Bachoon.
DID DEFENDANT FAIL TO PROVIDE A SAFE PLACE OF WORK FOR THE
CLAIMANT?
18. A finding of negligence requires proof that the Defendant owes a duty of
care to the Claimant; the Defendant has breached that duty; and the
2 Chap. 88:05
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damage to the Claimant was attributable to the breach of the duty by the
Defendant3. There must be a causal connection between conduct and the
damage and the kind of damage suffered by the Claimant must not be so
unforeseeable as to be too remote4.
19. At common law an employer has a non-delegable duty (a) to provide a safe
place of work, including a safe means of access; (b) to provide competent
employees and supervision; (c) to provide and maintain proper plant and
machinery; and (d) to provide a safe system of work5. All the circumstances
relevant to the particular employee must be taken into consideration,
including any particular susceptibilities he may have6.
20. The duty to provide a safe place of work requires the employer to make
the place of work as safe as the exercise of reasonable care and skill would
permit7. Whilst an employer has a duty to take care to ensure that the
premises where his employees are required to work are reasonably safe,
in each case, the degree of care to be taken by the employer will vary
according to the circumstances8.
21. The duty to provide a safe system of work does not require perfection. It
is a duty to take reasonable steps to provide a reasonably safe system of
work with regard to the inherent dangers in the operation9. An employer's
duty is not that of an insurer. The employer does not undertake that there
will be no risk, merely that such risks as there are will be reduced so far as
3 Charlesworth & Percy on Negligence 12th Edition, Chap 1 para 1-19. 4 Clerk & Lindsell on Tort 19th Edition, Chap 8 para 8-16 5 Munkman on Employer’s Liability 16 Ed para 2.4B; Charles and Percy on Negligence 12 ed at
paragraphs 11-17 and Halsbury's Laws of England, Volume 52 (2014), paragraph 376 6 Halsbury's Laws of England, Volume 52 (2014), paragraph 376 7 Charlesworth and Percy on Negligence 12th edition para 11-18. 8 Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110, Cook v Square D. Ltd [1992] PIQR 33. 9 Charlesworth and Percy on Negligence 12th edition para 11-69
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reasonable. To the extent that this leaves an employee at risk, he will
accept the inherent risks that cannot be avoided by the exercise of such
reasonable care and skill on the part of his employers10.
22. The duty to take reasonable care will generally involve, as a starting point,
a duty to perform an adequate assessment of all of the risks to which
employees may be exposed during the course of employment, in order
then to determine appropriate precautions to be taken to avoid injury11 .
It is no defence where the Claimant was an experienced employee who
never complained about the safety of his workplace12.
23. The Claimant pleaded that the Defendant was negligent since it failed to
do the following:
(i) Ensure that the work was at a height which was carried out in a
manner so far as is reasonably practicable, safe;
(ii) Provide the Claimant with adequate equipment for the safe
execution of his work by way of a cutting device to use on the
plastic wrapping thus exposing him to an unnecessary risk of
injury;
(iii) Provide or implement a safe system of work thus exposing him to
an unnecessary risk of exposure; and
(iv) Furnish the Claimant with comprehensible and relevant
information on the risks to his health and safety and the
preventative or protective measures identified by a risk
assessment, and/or provide adequate health and safety training.
10 Munkman on Employer's Liability 16th edition para 4.62 11 Charlesworth and Percy on Negligence 14th Ed. 12-25 12 Charlesworth and Percy on Negligence 14th Ed. 11-20
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24. The Claimant also pleaded that the defendant was negligent since it
permitted or required the Claimant to work on an inadequately sized
surface area at a height when it was unsafe to do so.
25. The Defendant stated that it was not negligent since the Claimant failed to
utilize a practical approach and his reasonable judgment to unwrap the
plastic which was around the beverages and that any injury which he
suffered was caused wholly or in part by his own negligence in that the
Claimant:
(i) Failed to utilize any sharp object to unwrap the plastic;
(ii) Failed to take any proper precaution for his own safety, having
regard to the ongoing work;
(iii) Acted without due care and attention in the circumstances by
tearing the wrapping using his hands and standing on the ledge of
the tray as pleaded by the Claimant;
(iv) Acted in a manner which was heedless to his own safety by
standing on the ledge of the tray;
(v) Failed to heed and/or act upon the wrapping giving away when
the Claimant was tearing the wrapping with his hands; and
(vi) Failed to have regard for his own safety in his management and/or
unwrapping of the product.
26. The onus was on the Claimant to prove that the Defendant was negligent
since it failed to take steps to protect him. The Claimant’s case was that
the Defendant failed to provide a safe system of work since (a) there was
no training of the Claimant for the job to be done; and (b) there was no risk
assessment of the job, namely: it caused the tray of the truck to be filled
to capacity which necessitated the Claimant to stand on a narrow ledge at
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a height to unpack the truck; and it failed to provide a device for the
Claimant to cut the plastic wrap which was used around the beverages.
Training of the Claimant
27. It was submitted by the Defendant that no training was required for the
task since it was not complex in nature and it required no supervision.
28. The task which the Claimant was involved in when he was injured was off
loading cases of beverages which were wrapped in plastic from the tray of
a truck which was filled to capacity. The unchallenged evidence of the
Claimant, his witness Mr. Richard Ramdeen and the Defendant’s witness
Mr. Shawn Heera was that there was no training with the drivers with
respect to the offloading process. In cross-examination, the Claimant
stated that he was doing the same job for about a year before the accident
and that although it was a task, which did not require supervision, it was
not a basic task.
29. In my opinion, there was no evidence advanced by the Claimant to
demonstrate that the off-loading of the beverages from the tray of the
truck was a complex or unusual task which required supervision or training.
As such I was not convinced that the Defendant’s failure to provide any
training for this task meant that it failed to provide a safe system of work.
Risk assessment of job to be done
30. There were two aspects of the Claimant’s job which he alleged the
Defendant did no risk assessment, namely: it caused the tray of the truck
to be filled to capacity which necessitated the Claimant standing on a
narrow ledge at a height to unpack the truck; and it failed to provide a
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device for the Claimant to cut the plastic wrap which was used around the
beverages.
Truck filled to capacity
31. The Claimant testified that on the day of the accident, he and two other
employees were making deliveries to customers. He was the driver and the
truck was filled with cases of drinks. They arrived at Reynold’s Wholesale
where he parked on the side of the road in front of Reynold’s Wholesale.
He exited the truck and went to the back where the enclosed tray was.
There were 4 sliding doors on each side of the tray. The latch of the sliding
door was accessible while he was standing on the road and so he opened
the second sliding door on the right side of the truck. He held onto the
sliding door and stepped onto a horizontal bar at the bottom of the tray
and climbed onto the ledge of the tray. He said that this was the only way
to access the beverages since the tray was filled to capacity so there was
little standing room. There were ten pallets of beverages in the tray and
the only available space to stand was on the ledge of the tray and he
estimated the available standing space to be 15 feet (approximate length
of the tray) by 8 inches and 3.5 feet above the road. In his witness
statement the Claimant stated that the photograph annexed to the
Defence did not show the part of the truck he accessed the beverages
from.
32. He stated in cross-examination that if he stood on the ground outside the
truck he would not have been able to touch the top cases of the beverages
since the bottom of the truck reached him close to his waist. He said that
he did not think that he should have started tearing the plastic from the
time he was standing on the ground since it was not practical because the
cases of the beverages were stacked higher than his head. He stated that
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he started tearing the plastic off the cases of beverages from the top since
if he had started at the bottom the beverages could have fallen on him due
to movement in transportation. He also testified that there was an initial
tear to the plastic and that it made more sense to pull the plastic up rather
than tearing apart. He stated that when he was standing on the ledge of
the tray of the truck he was facing the pallets with one foot ahead of him
with his back facing the outside. According to the Claimant, one foot was
inside on top the pallet and the other was on the ledge. He further testified
that any effort to stand sideways on the tray in executing the job would
have been dangerous.
33. The Claimant confirmed he was with 2 employees on the date of the
accident, Mr. Beckles and another person. He was handing Mr. Beckles the
beverages off the truck and the other employee was at the back of the
establishment packing the beverages. He agreed he did not bring any of
the employees as witnesses. He said that he never approached the third
employee to give a witness statement because he was not there at the
time the accident occurred and he did not know his name. He said he made
efforts to contact Mr. Beckles but could not find him.
34. The evidence to support the Claimant was from his brother Mr. Richard
Ramdeen who testified that he worked at the Defendant as a
driver/salesman from 2011 to 2014. He said he drove and assisted in
offloading trucks. He explained that the cases of the beverages were stored
in the enclosed tray of the truck. In order to access the cases of beverages
he went into the tray of the truck by holding unto the opened door at the
back of the truck and stepping unto a bar at the bottom of the truck and
climbing unto the ledge which was about 3.5 feet above the level of the
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road. He stated that the space in the tray to stand was about 7 inches, or
less than the size of his foot.
35. He explained that the beverages were in cases of 24 which were covered
in plastic and stacked on top of each other, with the top case about one
foot below the roof of the enclosed tray and the top case was about 7 feet
above the tray. He also explained that the beverages were on pallets and
they were packed from the front of the tray to the back of the tray. There
were about 70 to 80 cases of beverages on the pallets which were then
wrapped in plastic a few times. He stretched his arms up in order to reach
the top case. The tray was divided in half with a centre bar running the
length of the tray. There is no space for a person to fit between the two
halves. There were pallets of products on either side.
36. According to Mr. Ramdeen he had to burst the plastic to remove it from
around the beverages which he did while standing on the ledge at the back
of the truck. He said that when he used his hands to burst the plastic he
stood on the ledge at the back of the truck and he started at the top and
pulled the plastic back using one hand and bracing with the other hand on
the case.
37. Mr. Ramdeen admitted in cross-examination that he did not fall off the tray
of the truck while he was removing the plastic from the cases of beverages
or that he communicated any complaint to the Defendant that he was
having trouble offloading the beverages.
38. The Defendant did not call any witness who was present at the time of the
accident. The Defendant’s witness on this issue was Mr. Shawn Heera who
testified he is the Regional Sales Manager at S.M. Jaleel & Co., the company
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that contracted with the Defendant to deliver the beverages. He stated
that the photograph annexed to the Defence13 showed the same type of
truck used at the time of the accident but it did not show the tray on which
the beverages were stacked.
39. Mr. Heera testified in cross-examination that he first became aware of the
accident in 2018. He stated that the driver’s job included assisting in
offloading the truck. He has offloaded a truck, including in 2014 around the
time of the accident. He agreed that in his witness statement he did not
address standing on the truck or where a driver/salesman would stand up
when offloading the beverages. According to Mr. Heera the beverages are
stacked in the tray of the truck and the person off-loading the truck is
required to stand on the edge of the truck which is about 4 or 5 inches. He
said that the person usually started offloading from the top and the top
case is sometimes above the person’s head. He clarified that the plastic
wrap had to be pulled off to access the cases of the beverages.
40. Mr. Heera also explained in cross-examination that the ledge of the truck
where one stands was approximately higher than the average person’s
waist. He agreed with Counsel that if someone stepped back, he would be
floating in air and he would not be able to put any weight on that leg. He
agreed that standing on the 5 inches of ledge carries a risk and there is the
possibility that someone can fall.
41. I have not made any adverse inference by the Claimant’s failure to call Mr.
Beckles as a witness since it is highly probable that the Claimant may have
lost contact with him and he did not have any contact information for him.
In any event, it appears that Mr. Beckles was an employee of the
13Bundle A page 147
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Defendant and it is more probable that the Defendant would have had the
contact information to call Mr. Beckles as a witness.
42. The evidence of all of the witnesses were that:
(a) The cases of the beverages were stacked about 7 feet high in the
tray of the truck;
(b) To access the beverages a person who was offloading had to stand
on a narrow ledge in the tray which was at a height of
approximately three feet above the ground;
(c) The standing space in the tray was very narrow so that if the
person stepped back he could fall off the tray unto the ground;
(d) To offload the beverages, the plastic wrapped around them had
to be removed;
(e) The beverages were removed from the top to bottom. To do so a
person had to stand in the tray of the truck and reach to the top
which was above his head.
43. In my opinion the filling of the tray of the truck to capacity with the
beverages resulted in the beverages being at a height which was above the
person’s head and with a narrow space for the person to stand. This
resulted in a real risk of danger to anyone who was off-loading the truck
and the risk of danger was increased since the person was also standing at
a height 3 feet above the ground. For these reasons I am not satisfied that
the Defendant undertook a proper risk assessment by filling the truck to
capacity with the beverages.
44. I now turn to the use of a sharp object to unwrap the plastic around the
cases of the beverages.
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The use of a sharp object
45. The Claimant testified that the cases of the beverages on the pallets were
wrapped together with plastic and that it was wrapped several times. In
order to remove a single case, the plastic had to be removed. To do so he
held unto the stack of beverages with his left hand and held the plastic
wrap with his right hand and he pulled the plastic to burst it. He said that
he needed to brace with his left hand because he would have to use some
force to burst the plastic. He testified that the plastic wrap was removed
incrementally at each row so the remaining cases were still secured. After
the top part of the plastic wrap was removed, he was able to pass all of the
cases on the top row and the row just beneath to his co-worker who was
standing below on the ground. He has used this method of unloading the
truck since he started working with the company. According to the
Claimant while he was bursting the plastic wrap to access the third row he
pulled the plastic and it gave way suddenly and he fell off the tray onto the
ground hitting his buttocks, hip, back and hands.
46. The Claimant’s evidence that he used his hands to tear away the plastic
covering was not challenged in cross-examination.
47. Mr. Ramdeen’s evidence was that in order to remove the plastic, he would
have to burst the plastic which is done while standing on the ledge of the
truck. Sometimes he burst the plastic with a knife, sometimes with his
hand. He borrowed a knife from one of the salesmen with him and he also
used his hands when the salesman had no knife. He admitted that the
Defendant never issued them with knives. Mr. Ramdeen stated in cross-
examination that sometimes the plastic was easy to rip and that he did so
without using a knife.
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48. In response to the Statement of Case which stated that the Claimant used
his hands to tear away plastic, Mr. Heera stated that it was standard
operating procedure to use bare hands when unwrapping the plastic from
around the stacks. He testified that knives and/or any sharp objects are
strictly prohibited and bare hands were more than sufficient for
unwrapping the stacks of beverages for delivery. He also stated that gloves
were also not required.
49. In cross-examination, he stated that it was not documented that using
hands when unwrapping the plastic is a standard operating procedure but
he said that everyone knew about the procedure. When referred to the
Defendant’s Defence which stated at paragraph 5 that the Claimant should
have used a sharp object to unwrap the plastic, he said that that was wrong
since they did not cut the plastic. He said the plastic was wrapped just one
or two times and not three or four times.
50. Although the Defendant pleaded that the Claimant failed to use a sharp
object to cut the plastic wrapped around the beverages, there was no
evidence that the Defendant provided such object to the Claimant. The
Claimant and his witness’ evidence was that none was provided. Indeed,
the Defence was contradicted by the Defendant’s own witness Mr. Heera
who testified that it was not standard operating procedure to use any
sharp objects such as knives to cut the plastic. In my opinion Mr. Heera’s
evidence supported the Claimant’s case that the Defendant failed to do a
proper risk assessment by failing to provide a sharp object to the Claimant
to cut the plastic wrapped around the beverages.
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DID THE CLAIMANT CONTRIBUTE TO HIS INJURIES AND IF SO, TO WHAT
DEGREE?
51. The Defendant’s Defence was that the Claimant contributed in whole or in
part to the injuries that he sustained. It was submitted on behalf of the
Defendant that the Claimant had at least a year’s worth of experience at a
very basic task i.e. offloading beverages off the back of the truck which
included climbing on the tray, tearing/ripping the plastic wrap from around
the beverages, lifting the beverages and handing them down to the other
employees, all without incident and that any injury sustained by the
Claimant would have been done so by his own negligence.
52. It was argued on behalf of the Claimant that the Defendant led no evidence
to show that the Claimant’s execution of his job was negligent nor was
there anything in his evidence to suggest that he acted without due care
and attention.
53. In Ian Gonzales v. Scaffolding Manufacturers (Trinidad) Limited & ors14,
the Court set out a brief description on the law relating to contributory
negligence as:
“Contributory negligence means that there has been some act or
omission on the Claimant's part which has materially contributed
to the damage caused and is of such a nature that it may properly
be described as negligence. For these purposes, "negligence" is to
be taken in the sense of careless conduct rather than its technical
meaning involving breach of duty. It means the failure by a person
to use reasonable care for the safety of either himself or his
14 CV2009-03527
Page 18 of 41
property so that he becomes blameworthy in part as an author of
his own wrong15.”
54. In my opinion, the Defendant failed to demonstrate that there was some
act or omission on the part of the Claimant which caused his injury. The
Defendant’s own witness Mr. Heera corroborated the Claimant’s evidence
that the only practical process which could have been used by the Claimant
to offload the tray of the truck, which was filled to capacity, was to stand
on the narrow ledge of the tray of the truck; remove the top beverages
first and by pulling apart the plastic wrapping given the absence of a cutting
device and the standing room available to him. For these reasons I make
no finding of contribution on the part of the Claimant.
IT THE DEFENDANT WAS RESPONSIBLE FOR THE CLAIMANT’S INJURY,
WHAT QUANTUM OF DAMAGES SHOULD BE AWARDED TO THE
CLAIMANT?
55. The Claimant pleaded loss of special and general damages.
Special Damages
56. The Claimant pleaded special damages for:
Physiotherapy sessions with Kamla Ramdath-Cumming $3400.00
Visits with Dr. Anil Kumar $1350.00
Visit with Dr. Ramcharan $500.00
MRI at Alexandria MR Ltd $8200.00
TOTAL $13,450.00
15 Charlesworth & Percy on Negligence (10th Ed.) @ p.170
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57. Special damages must be particularized and pleaded and they must be
proved by evidence. The degree of proof varies depending on the
circumstances, the nature of the claim, the difficulty or ease with which
proper evidence of value might be obtained and the value of the item
involved16.
58. The sum of $13,450.00 for additional medical expenses which the Claimant
claimed he incurred was supported by receipts and the Defendant did not
challenge the said receipts. As such the sum of $13,450.00 is awarded as
special damages.
General Damages
59. In determining the award for general damages the Court is guided by the
principles in Cornilliac v St Louis 17 namely:
(i) The nature and extent of the injuries suffered;
(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; and
(v) The extent to which the plaintiff’s pecuniary prospects have been
materially affected.
Nature and Extent of Injuries Suffered
60. The Claimant pleaded his particulars of injury as follows:
(i) Disc herniation, disc bulge, disc desiccation with various parts
of the back;
(ii) Loss of lumbar lordosis with moderate spondylotic changes;
(iii) End plate depressions and end plate changes;
16 CV 2007-02193 Raghunath Singh & Company Limited v. National Maintenance Training and Security Company Limited 17 (1966) 7 WIR 491
Page 20 of 41
(iv) Posterior annular tears at various levels;
(v) Narrowing of the spinal canal and bilateral neural foramina;
(vi) Mild inferior migration of disc and mild ligamentum flavum
hypertrophy;
(vii) Spinal stenosis and impingement of nerve roots;
(viii) Slouched posture with decreased lumbar spine extension and
difficulty attaining upright posture, with attempts to do so
exacerbating LBP;
(ix) Pulling sensations contralaterally upon side-bending with
central LBP on rotation;
(x) Increased LBP and referred symptoms on lumbar flexion, right
unilateral stance, knee to chest, right SLR, slump and right
quadrant testing;
(xi) Significant muscle tightness;
(xii) Basic function as well as ability to perform job specific skills
restricted by present symptoms;
(xiii) There was significant tenderness with painful, limited range of
motion;
(xiv) Neck pain which radiates down to upper extremities;
(xv) Assessed as 30% permanent partial disability;
(xvi) The Claimant is a Driver/Salesman by trade and can no longer
lift heavy objects or go on prolonged drives as required when
making deliveries.
61. It was submitted by Counsel for the Defendant that the various medical
reports which were annexed to the Claimant’s witness statement
contained hearsay information and that the Claimant did not produce the
doctors for cross-examination at the trial.
Page 21 of 41
62. In the agreed Bundle of Documents, the parties agreed to the authenticity
but not the contents of certain reports. The only medical report which the
parties agreed to both the authenticity and the contents was that of Dr.
Godfrey Araujo, Orthopaedic Consultant dated 31 October, 2017.
63. The Claimant filed a hearsay Notice on the 25 April, 2018 whereby the
contents of the following medical reports were admitted into evidence
namely: medical reports from Dr. Anil Kumar, consultant orthopaedic
surgeon dated the 4 November, 2014, 25 November, 2014, and 27 April,
2016; medical reports from Dr. Robert Ramcharan Consultant
Neurosurgery dated 20 May, 2015, 5 April, 2016 and 14 March, 2018; MRI
reports from St. Clair MRI Centre dated 6 September, 2014; MRI reports
for the left shoulder, right shoulder and cervical spine from Alexandra MRI
Limited all dated 15 March 2016; and reports from physiotherapist Kamla
Ramdath-Cumming dated 13 October, 2014, 14 January, 2015 and 31
January, 2015.
64. Therefore, it was left up to the Court to determine the weight to attach to
the aforesaid reports. In the absence of any medical evidence led by the
Defendant to challenge the findings of the aforesaid reports I attached
significant weight to them.
65. The first MRI Scan dated September, 2014 reported the following:
a. Loss of lumbar lordosis with moderate spondylotic changes. Small
end plate depressions and type I/II end plate changes are seen in
the contiguous end plates at L3-4 to L5-S1 levels.
b. Disc desiccation with decrease in disc height and posterior
annular tear at L3-4, L4-5 and L5-S1 levels.
Page 22 of 41
c. L3-4 level: There is diffuse disc bulge causing mild narrowing of
spinal canal and bilateral neural foramina.
d. Lumbar L4-L5 level posterior disc herniation, spinal stenosis and
impingement of bilateral L5 nerve impingement due to narrowing
of bilateral neural foramina and lumbar sacral;
e. L5-S1 posterior para-central disc herniation, spinal stenosis and
impingement of bilateral S1 nerve root.
66. Dr, Kumar in his report dated 25 November, 2014 stated that “disc
herniation may or may not progress as he gets older due to aging leading
to spondylosis and instability of the spina segment causing more
disability,”
67. Three years later Dr. Araujo’s report18 diagnosed the Claimant as having:
cervical disc disease, cervical muscle spasm, right rotator cuff tendinitis
and lumbar disc disease.” Dr. Araujo also reported mild degenerative
changes in the cervical spine, disc bulge at C4-C5, C5-C6 and C6-C7 causing
mild mass effect over the dural sac with mildly compromised neural
foramina bilaterally. In the right shoulder; minimal sub-coracoid bursal
fluid indicating bursitis. In the left shoulder; sub-coracoid bursitis, mass
effect over supraspinatus tendon and mild arthritis at the acromio-
calvicular joint. Dr. Araujo concluded that “Post traumatic disc bulges were
caused by the fall and his general cervical and lumbar spondylosis would
have been aggravated as well by the incident.”
68. In essence the Claimant was diagnosed with lumber spondylosis with L4-
L5 and L5-SI degenerate discs’ disease as well as cervical spondylosis with
C5-C6 and C6-C7 degenerate disc disease.
18 Trial Bundle B at page 145
Page 23 of 41
Nature and gravity of the resulting physical disability
69. Dr. Kumar assessed the Claimant’s permanent partial disability on the 27
April, 2016 at 30%. In October 2017 Dr. Araujo stated in his medical report
that:
“Mr. Bissoon is severely limited in his effort tolerance for sitting and
as such in addition to his inability to lift loads of any weight as the
pain engendered by simple activities like sweeping means that he
would only be suitable for a very light posting that did not require
any of those activities and which would allow him breaks to stretch
his back or to lie down if the pain became severe. I cannot give more
guidance than that to his possible employment scope as there are
very few jobs (if any) which would entertain these parameters.”
70. The Claimant testified that he felt pain during his physiotherapy sessions
and medical appointments. He stated that bending, sitting or standing or
periods greater than 15 minutes caused him pain and discomfort. He has
not been able to lift heavy objects or go on prolonged drives. He has great
difficulty in playing with and caring for his grandchildren and doing
household chores. He can now sit for 20 minutes but standing or walking
for more than 15 minutes is painful and uncomfortable and he feels pain if
he lifts light loads. He continues to feel the effects of his injuries today. He
cannot perform any jobs that require prolonged sitting, standing or
walking or the lifting of loads. He needs frequent rest. In cross-examination
the Claimant stated that the physiotherapy assisted in relieving his pain
but he stopped in June, 2016.
Pain and suffering which had to be endured
71. The Claimant pleaded pain to his thighs, needles to calf at rest with
increased symptoms on bending and sitting for periods greater than 10
Page 24 of 41
minutes, standing, walking and attempting lifting and decreased
symptoms when lying. At the time of the fall the Claimant experienced
excruciating pain and is still to this date suffering from the effect of the
injury sustained.
72. Pain is subjective and it will depend on all the circumstances of the case.
The Claimant testified that he felt excruciating pain when he fell. He said
that he called a supervisor to send a driver for the truck but since there
was no replacement driver, he drove the truck from D’Abadie to Endeavour
while in intense pain. Thereafter, he used public transport to take him
home to Cunupia because no transportation was provided by the
Defendant. During the course of his medical treatment two epidural
injections were administered to him for the pain in 2014 and 2015. He also
testified that he feels pain and discomfort in his neck, shoulders, muscle
tightness, pain in his arms, thigh, hip and back up to the date of the trial.
73. During cross-examination, the Claimant stated that he stopped attending
doctors because he ran out of finances and that he was still taking
medication for his pain. He also admitted that he stopped the
physiotherapy in 2016.
Loss of amenities suffered
74. The Claimant testified that he has great difficulty in playing with and caring
for his grandchildren and doing household chores.
Extent to which his pecuniary prospects have been affected
75. The Claimant testified that at the date of the accident his monthly salary
was $4,329.48 and that he was terminated from his employment on 26
February, 2016. He said that prior to his injury he sold fruits at the Port of
Page 25 of 41
Spain Central Market on Saturdays and Sundays from 2010 and his monthly
profits was an average of $2,000.00 but after his injury he has not been
able to work in the market.
Analysis of the evidence
76. In analysing the evidence, I have considered the following factors in
arriving at an award of damages for the injuries sustained by the Claimant:
(a) The Claimant was diagnosed by Dr, Kumar in November, 2014
with having tenderness over the lower lumbar spine with painful
limited range of motion of the lumber spine. He was referred to
physiotherapy and given 2 epidural injections for pain. Dr. Robert
Ramcharan, Consultant in neurosurgery in April, 2016
recommended physiotherapy for his neck and lower back. I have
noted that although in May 2015 Dr. Ramcharan had
recommended surgery if the pain continued, in April, 2016 no
such recommendation was made which caused me to conclude
that there was no significant deterioration to cause a
recommendation for surgery.
(b) Dr. Kumar’s assessment of 30% permanent partial disability for
the Claimant as a whole body assessment was not helpful in
assessing damages since as Kangaloo JA said in Persad v
Seepersad19 “an explanation of the effect of injuries on a
person’s earning capacity in words as opposed to figures would
be greater use to the Courts in their assessment of damages at
common law.”
(c) I accept that the Claimant suffered pain in the region of his lower
back and shoulders buttocks when he fell and that his pain
continued to the extent that he was given epidural injections
19 Civil Appeal No 136 and 137 of 2000
Page 26 of 41
during the course of his treatment to ease the pain. However, if
the Claimant was in the extent of pain which he alleged he would
have continued to attend physiotherapy, since he said that it
assisted him with alleviating his pain, even from a public health
institution but there was no evidence that he made any such
enquiries. Further, there was no evidence on the type of
medication he was still using to alleviate his pain. I was of the
opinion that the Claimant’s pain was not as unbearable as he
made it out to be.
(d) There was no evidence that the Claimant’s life expectancy has
been affected. The impact of the injury on the Claimant’s daily
activities was difficulty in sitting for long periods i.e. greater than
20 minutes, playing with his grandchildren, lifting objects and
doing household chores. I have attached significant weight to the
inability to do these activities since they were critical in the
Claimant performing his job and his assisting at home. I have
concluded that the Claimant’s loss of amenities was significant.
77. In determining the award of general damages, other similar cases are also
guidelines for the possible range of an award of damages20. The Claimant
submitted that the Court should consider the awards made in the local
cases of Choon v Industrial Plant Services Ltd21 and Evans Moreau v Port
Authority of Trinidad and Tobago22 . The Defendant submitted the more
appropriate awards are in Lennard Garcia v PLIPDECO Ltd23; Gillian
Roxanne Isaac v Shaun Solomon and anor24; Marcel Benjamin v Lennox
20 Aziz Ahamad v Raghubar (1967) 12 WIR 352 21 CV 2006-00574 22 CV 2006-03958 23 CV 2010-03061 24 CV 2007-04400
Page 27 of 41
Petroleum Services25; Ramesh Sam v Tropical Power Limited26 and Dexter
Sobers v the Attorney General of Trinidad and Tobago27.
78. The authorities referred to by both the Claimant and the Defendant were
all considered in the most recent authorities of Lennard Garcia, Darryl
Abraham and Marcel Benjamin. In my opinion, these cases are relevant in
considering an award for general damages in the instant matter.
79. Lennard Garcia was a decision in September, 2013. In Lennard Garcia, the
Plaintiff was a 60-year-old retired Terminal Worker who slipped and fell on
oil spilled onto the floor at the Defendant workplace thereby sustaining
soft tissue injuries to the lower back, right shoulder and right knee;
persistent right-sided sciatica and degenerative spinal stenosis at L4-5 and
L5-S1 levels.
80. Dr. Gentle testified that the Plaintiff was diagnosed with lumbar
spondylosis that “this was pre-existing and may have been aggravated by
his fall. He stated further that spondylosis occurs with aging in every human
being and/or is consistent with degenerative changes.” The medical report
pointed to challenges by the Plaintiff with walking, sitting and standing but
not to the extent to which this has impacted on his enjoyment of
recreational activities or his family life. This lack of evidence was taken to
mean that any loss of amenities sustained by the Claimant was either non-
existent or insignificant. Master Alexander awarded general damages in
the sum of $56,000.00 (being 70% of $80,000.00) with interest at a rate of
9% per annum from 21st July 2010 to 19th September, 2013. This award
updated to January, 2015 is $88,730.77.
25 CV 2011-02393 26 CV 2008-03126 27 CV 2008-04393
Page 28 of 41
81. Darryl Abraham was delivered one week after Lennard Garcia. In Darryl
Abraham the claimant’s injuries were nerve root irritation, nerve root
compression, lumbosacral spasm with decreased range of movement,
absent hamstring jerk, decreased ankle reflex, diminished sensation
bilateral L5 dermatome, weakness of right ankle dorsiflexion, moderate
spondylotic changes, osteophtic lipping L4-5, mild diffuse annular disk
bulge at L3-4, mild left neural foramina stenosis, nerve roots irritation L3-
4 and L4-5, diffuse annular disk bulge with focal disc protrusions at L4-5.
82. The court considered that the claimant had injuries to more than one disc
and that there were additional injuries to the ankle resulting in a wider
gamete of injury. The court awarded $130,000.00 (before deductions for
contributory negligence) in September, 2013. This sum adjusted to present
is $156,086.47.
83. Marcel Benjamin’s award was given in April, 2014. In that case, the Plaintiff
claimed damages for personal injuries and consequential loss arising from
an accident on 9 February, 2009 when he was struck by an “elevator horn.”
A medical report said that the findings continued to be consistent with
cervical and lumbar nerve root irritation secondary to neck and low back
strain on spondylosis. Surgery for anterior cervical fusion and Plating and
Lumbar Laminectomy with L4/5 and L5/S1 Discectomies are advised.
Permanent Partial Disability of 60% was assessed. The Court awarded
$90,000.00 for general damages for pain and suffering and loss of
amenities on the 17 April, 2014.
84. In my opinion, the injuries in Lennard Garcia and Darryl Abraham were
more severe than the injuries suffered by the Claimant in the instant case.
In my opinion the Claimant’s injuries are more in line with the injuries in
Page 29 of 41
Marcel Benjamin where in 2014 the Court awarded $90,000.00. Given
that this award is being made almost 5 years after Marcel Benjamin in my
opinion, an appropriate award for the Claimant’s general damages is
$100,000.00.
Cost of future care
85. The Claimant pleaded the sum of $10,000.00 for the costs of future care.
In the medical report by Dr. Ramcharan dated 14 March, 2018, Dr.
Ramcharan recommended that the Claimant continue physiotherapy for
an indefinite amount of time. He suggested that epidural steroid injections
would assist in relieving acute pain. He did not recommend surgery at that
time since he was of the view that further MRI scans of the cervical and
lumbar spine to assess any change in the Claimant’s condition should be
done.
86. The Claimant testified that he paid the sum of $200.00 for each therapy
session with Ms. Kamla Ramdath-Cummings. Given that the Claimant has
only pleaded a sum for 50 sessions of physiotherapy I am minded to make
this award since Dr. Ramcharan’s recommendation was for an indefinite
period.
87. In the closing submissions, Counsel for the Claimant submitted that the
Court also award sums for repeat MRI scans in the sum of $12,000.00 to
further assess changes to the Claimant and the costs for two epidural
injections in the sum of $19,000.00. I have decided not to make any order
for those awards since this was never part of the pleaded case for the
Defendant to meet and to do so now would be unfair to the Defendant.
Page 30 of 41
Loss of future earnings
88. The Claimant pleaded the sum of $415,630.08 as future loss of earnings as
a Driver/Salesman from 29 February, 2016 at $4329.48/month; multiplier
8 and future loss of earnings in the sum of $288,000.00 from market
vendor work from 18 July 2014 at $2000/month; multiplier 12.
89. Mc Gregor on Damages28 at paragraph 3-005 referred to the learning by
Lord Goddard in British Transport Commission v Gourley29 who stated
that:
“In an action for personal injuries the damages are always divided
into two main parts. First there is what is referred to as special
damages, which has to be specially pleaded and proved. This
consist of out-of-pocket expenses and loss of earnings incurred
down to the date of trial, and is generally capable of substantially
exact calculation. Secondly, there is general damage which the law
implies and is not specially pleaded. This includes compensation for
pain and suffering and the like, and, if the injuries suffered are such
as to lead to continuing or permanent disability, compensation for
loss of earning power in the future.”
90. The Claimant did not separate his pleading for loss of earnings into past
loss of earnings for the period of injury until trial as special damages.
Instead, he made the fundamental flaw of lumping the entire claim for his
loss of earnings i.e. past and future into one claim as loss of future
earnings.
28 20th ed 29 [1956] AC 185 at 206
Page 31 of 41
91. It was submitted on behalf of the Claimant that although the pleading for
loss of future earnings was inelegant the Defendant was put on notice that
this was the case it had to meet.
92. In my opinion, this was not an inelegant pleading but it was deficient since
different requirements in law apply to a personal injuries claim for special
damages (i.e. past loss of earnings) and general damages (i.e. future loss
of earnings). In particular, the past loss of earnings must be specially
pleaded and proved and the future loss of earnings the
multiplier/multiplicand or lump sum rule apply.
93. Therefore, the failure to plead the past loss of earnings as special damages
means that this aspect of the claim must fail. As a consequence, in
determining the loss of future earnings I will only consider the period of
loss from the trial and not pre- trial.
94. In Munroe Thomas30 Kangaloo JA drew a distinction between loss of future
earnings and loss of earning capacity. An award for loss of earning capacity
as stated by Browne LJ in Moeliker v A Reyrolle and Co. Ltd31 only arises
where the claimant is employed at the date of the trial but there is a
substantial or real risk that he may lose this employment at some future
time and may as a result of the injury be at a disadvantage in getting
another job or an equally well paid job.
95. In the instant case, the Claimant’s evidence was that he was not employed
at the date of the hearing of the trial. In the circumstances, since the first
condition in Moeliker has not been satisfied I will now consider if an award
for loss of future earnings can be made.
30 Civ Appeal 25 of 2007 31[1977] 1 WLR 132
Page 32 of 41
96. An award for loss of future earnings can be made if the Claimant
demonstrates that there is a continuing loss of earnings which is
attributable to the accident32. Where there are evidential uncertainties
which prevent a court from using the multiplier/multiplicand method to
assess damages for loss of future earnings the courts have disregarded this
conventional approach and arrived at a lump sum figure to compensate
the Claimant for the future loss of earnings (Blamire v South Cumbria
Health Authority)33.
97. In order to prove loss of future earnings the Claimant has to show that the
injury was of such a nature that it rendered him incapable of performing
his duties as a truck driver and from selling produce at the central market,
or any other form of work whatsoever. If it rendered him incapable of
performing as a truck driver or selling produce at the central market but it
did not prevent him from doing other work, it was necessary to show that
he took steps to mitigate the loss. In discharging this onus, the medical
evidence as to the nature of the injury and the residual effect that the
injury may have had on the Claimant’s ability to work is critical34.
98. In the medical report of Dr. Araujo which was agreed upon by both parties,
Dr. Araujo indicated that:
“Mr. Bissoon is severely limited in his effort tolerance for sitting
and as such in addition to his inability to lift loads of any weight as
the pain engendered by simple activities like sweeping means that
he would only be suitable for a very light posting that did not
require any of those activities and which would allow him breaks
to stretch his back or to lie down if the pain became severe. I cannot
32 Civ Appeal 25/2007 Munroe Thomas v Malachi Forde and ors. 33 (1993)P.I.Q.R.Q1,C.A 34 CV A 110/2001 Seudath Parahoo v SM Jaleel & Co Ltd, Hamel-Smith JA at para. 8
Page 33 of 41
give more guidance than that to his possible employment scope as
there are very few jobs (if any) which would entertain these
parameters.”
99. No evidence was led by the Defendant to challenge this finding. There was
also no evidence by the Defendant of alternative jobs which the Claimant
could have done or performed given Dr. Araujo’s medical assessment. In
those circumstances I am of the opinion that there was little the Claimant
could do in mitigating his loss since there was no evidence of any
alternative jobs which he could have done given his medical condition.
Driver/Salesman
100. It was not in dispute that: the Defendant terminated the Claimant on the
29 February, 2016; his monthly income as a truck driver was $4,329.48 and
at the time of the trial the Claimant was 52 years 10 months old.
101. Counsel for the Claimant submitted that a fair multiplicand is the sum of
$51,953.76 ($4329.48 x 12). It was submitted also that the Claimant’s
yearly income was less than $72,000.00 per annum which is exempted
from paying income taxes. As such the 25% deduction on account of taxes,
holidays and other life contingencies are not applicable.
102. Counsel for the Defendant argued that if the Court is minded to grant an
award for loss of future earnings, the multiplicand should be the sum of
$38,965.32 since the Claimant’s monthly salary was $4329.48 with a
deduction of 25% for taxes and life’s contingencies. Counsel for the
Defendant also submitted that based on the learning in the Court of Appeal
decision of PTSC V Nerahoo Sookhoo35 the Claimant was paid Workmen’s
Compensation in the sum of $9,322.00 and the sum of $53,012.14 has
35 Civ Appeal No 21 of 1993
Page 34 of 41
been deposited with the Registrar of the Supreme Court as such the said
sums should be deducted in the award for future loss of earnings.
103. According to Mc Gregor on Damages36 the starting point in the calculation
of the multiplicand has long been the amount earned by the Claimant
before the injury. From this is deducted the amount the Claimant is
capable of earning in the future; if the injury has brought total incapacity,
then nothing falls to be deducted. Then a deduction is made for national
insurance contributions and income tax.
104. There was no evidence that the total annual income of the Claimant was
exempt or will be exempt from taxation in the future. In any event this is
not the only factor which the Court must consider in reducing the
multiplicand. In my opinion a 25% reduction of the annual income of the
Claimant at the time of the accident is a fair multiplicand since it takes into
account national insurance deductions and other statutory deductions. I
therefore set the multiplicand at $38,965.32.
105. I now turn to the multiplier. According to Mc Gregor on Damages at
paragraph 40-102 the starting point in the calculation of the multiplier is
the number of years that it is anticipated the Claimant’s disability will last
and the calculation falls to be made as from the date of the trial. In addition
to the discount because the award is by way of a lump sum, it is common
practice for the Courts to make a further discount on account of the
general contingencies of life; or as they are called the vicissitudes of life. It
is said that the multiplier must suffer some reduction to cater for the
possibility that the Claimant will die earlier than expected, the possibility
that he will meet with some accident that will keep him out of work for a
lengthy period or even result in his premature retirement, the possibility
36 20th ed at paragraph s 40-075 and 40-076
Page 35 of 41
that he may lose his job and become temporarily or even permanently
unemployed and the like.
106. With respect to the multiplier, Counsel for the Claimant submitted that at
the date of the trial the Claimant was 52 years 10 months, therefore an
appropriate multiplier is 6.
107. Counsel for the Defendant submitted a multiplier of 4 on the basis at the
time of the trial the Claimant was approximately 53 years and he may have
worked until the normal age of retirement of 60 years.
108. There was no evidence of the retirement age for a truck driver but it was
not disputed by the parties that it was reasonable to use 60 years as the
retirement age. In Dyial Latchman v Balgobin Sons & Bandsawmilling
Company Limited37, the Court applied a multiplier of 3 for the Claimant
who was a 50 year old cable man at the time of the assessment of
damages. In Dave Leon Moore v Dexter Lewis and the Ag of Trinidad and
Tobago38 the Claimant, was 52 years at the time of the trial and a multiplier
of 6 was applied and in Gerard Antrobus v Port Authority of Trinidad and
Tobago39 the Claimant, was 51 years at the time of the trial and a multiplier
of 2 was applied. In Marcel Benjamin v Lennox Petroleum Services
Limited40 the Claimant was 52 years at the time of the trial and a multiplier
of 2.5 was applied.
109. In the instant case the Claimant was approximately 53 years old at the time
of the trial and all things being equal he had 7 more years to work as a
truck driver. In my opinion a reasonable multiplier is 5.
37 CV 2007-02060 38 CV 2009-00988 39 CV2009-00726 40 CV 2011-02393
Page 36 of 41
110. Therefore, I award the sum of $194,826.60 (i.e. $38,965.32x5) as the
Claimant’s loss of future earnings as truck driver.
Market Vendor
111. I now turn to the claim for loss of future earnings as a market vendor. The
Claimant testified that he sold fruits in the Port of Spain Central Market on
Saturdays and Sundays. Before working for the Defendant, he sold
wholesale during the week and retail on the weekend. He purchased
watermelon from Richard Agostini. He was supposed to supply Gail Sayres
with citrus on the week of the accident. Earlier in the month his brother,
Richard Ramdeen provided transport for him to the Central Market. He
earned an average of $2000.00 monthly, sometimes more and he has not
worked at the market since his injury.
112. In cross-examination, the Claimant admitted that from 2013 he had about
8 wholesale customers. He did not have a ledger or record of his sales
because he sold his products directly to customers at the market. He
testified that Ms. Sayres purchased almost all year from him, but not
necessarily the same amount every time. He admitted that orders were
not in writing and that as a market vendor he did not pay income tax or fill
out any income tax returns. He agreed that there was no documentation
to determine how much he earned at the market.
113. Richard Agostini testified that he is a wholesale and retail vendor of fruits
who has been selling for 15 years at the Port of Spain Central Market. He
testified that on weekends he makes on average profit of $3500.00 on
retail sales. He said that he sold fruits to the Claimant at wholesale prices
and he has known the Claimant to be selling at the Port of Spain Central
Market for the past 10 years.
Page 37 of 41
114. He confirmed in cross-examination that he had a business relationship with
the Claimant. He said that he either called or met the Claimant to place an
order, but that there was nothing in writing. He indicated that at the
market the vendors did not provide receipts. He also stated that the
Claimant had a truck and a bus and the Claimant sold his produce out of a
tent at the market.
115. Gaily Sayres testified that she is a retail vendor of fruits and she has been
selling same for 20 years at Independence Square, Port of Spain. She
testified that on a weekend she makes on average, retail profits of
$4000.00. She has been purchasing citrus from the Claimant for about 10
to 15 years in the Central Market Port of Spain. She spent about $2000.00
per weekend purchasing citrus from the Claimant. She made an order from
the Claimant for the supply of fruits to be collected on 19 July, 2014 but he
was not there.
116. She confirmed in cross-examination that she has been buying fruits from
the Claimant for about 10-15 years. She indicated that no receipts were
provided to show her purchases from the Claimant and she did not have
any documentation to prove what was stated in her witness statement.
She said the Claimant sold his fruits from a white tent and a white van.
117. Counsel for the Claimant submitted that the Claimant ought to be
compensated for loss of future earnings as a market vendor. Counsel
argued that the Claimant’s monthly income as a market vendor was
approximately $2000.00. Therefore, a reasonable multiplicand is
$24,000.00. Counsel submitted that since there is no fixed age of
retirement for a market vendor an appropriate multiplier is 9.
Page 38 of 41
118. With respect to the Claimant’s claim for loss of future earnings as a market
vendor, Counsel for the Defendant argued that even if the Court was to
accept that the Claimant was a market vendor, he should not be
compensated under this head since he has not provided any evidence that
that he made the income he alleged.
119. I accept that the Claimant was a market vendor on the weekends since this
aspect of his evidence was unchallenged and was corroborated by his 2
witnesses Ms. Gail Sayres and Mr. Richard Agostini.
120. My challenge was accepting the Claimant’s evidence that he earned
approximately $2,000.00 per month in profit in the absence of any type of
corroborating evidence. He did not call any of his children whom he said
assisted him as witnesses to corroborate this sum. As a market vendor it
would have been highly unusual to have receipts, ledges or any type of
written records of the volume of his sales. It is also very probable that
since the nature of his business was in cash, his profits of $2000.00 per
month was also in cash which he would have put back into his business or
used to fund his family expenses. In this regard, it was most probable that
he did not deposit this sum into his bank account so bank records and
income tax returns would not have assisted.
121. The evidence from Ms. Sayres that she purchased fruits from the Claimant
each weekend in the sum of $2000.00 did not mean that this was his profit.
Also Mr. Agositini’s evidence that he earned retail profits of $3,500.00 on
weekend sales did not assist the Claimant since there was no evidence that
the Claimant’s sales were the same volume as Mr. Agostini’s.
Page 39 of 41
122. For these reasons, although I have been persuaded that the Claimant was
a market vendor on the weekends before the accident, in the absence of
any corroboration I am unable to accept that his monthly profit was
$2,000.00. In my opinion, there is a danger in only accepting this self-
serving evidence of the Claimant in circumstances where he could have
brought his children who assisted him in the market to give evidence to
support his claim. Based on this evidential deficiency I am unable to make
any award for the loss of earnings as a market vendor.
INTEREST
123. The award of interest on damages is discretionary pursuant to section 25
of the Supreme Court of Judicature Act41. The Court of Appeal in The
Attorney General of Trinidad and Tobago v. Fitzroy Brown et al42 reduced
interest awarded for false imprisonment, where allegations of assault were
made, at the rate which is payable on money in court placed on a short
term investment account. As such, bearing in mind that monies are placed
in the Unit Trust account and since this was not a case where the
commercial lending rates was applicable the Court of Appeal reduced the
interest awarded from 9% to 2.5% per annum.
CONCLUSION
124. The Claimant has failed to prove that off-loading the beverages from the
tray was a complex task which required supervision or training. He
therefore failed to prove that the Defendant did not provide a safe place
of work due to a lack of training. The Claimant has however successfully
proven that the Defendant failed to undertake a proper risk assessment by
having the truck filled to capacity with the beverages and by failing to
41 Chapter 4:01 42 CA 251 of 2012
Page 40 of 41
provide a sharp object to the Claimant to cut the plastic wrapped around
the beverages. For these reasons I have found that the Defendant was
negligent and liable for the Claimant’s injury.
125. I make no finding of contributory negligence on the part of the Claimant
since the Defendant failed to prove that the Claimant’s action contributed
to his injuries.
126. I have awarded the sum of $13,450.00 special damages since the claim was
supported by receipts and the Defendant did not challenge the said
receipts.
127. I award the sum of $100,000.00 as general damages and the sum of
$10,000.00 as the cost of future care. I have awarded the sum of
$194,826.60 as loss of future earnings as a driver/salesman. The sums of
$9,322.00 and $53,012.14 as Workmen’s Compensation are to be
deducted from the award for loss of future earnings as a driver/salesman.
No award is made for loss of future earnings as a market vendor since I was
of the view that the Claimant’s evidence that his net monthly income of
$2,000.00 was self-serving and not corroborated by any of his witnesses.
ORDER
128. Judgment for the Claimant.
129. The Defendant to pay the Claimant the following:
(a) Special damages in the sum of $ 13,450.00. Interest on the special
damages at the rate of 2.5% per annum from the date of the
accident i.e. 18 July 2014 to the date of judgment.
(b) General damages in the sum of $100,000.00. Interest on general
damages in the sum of 2.5% per annum from the date of service
of the Claim Form i.e. 27 September 2016 to the date of judgment.
Page 41 of 41
(c) Cost of future care in the sum of $10,000.00.
(d) Loss of future earnings as a driver/salesman in the sum of
$194,826.60 (less the sum as Workmen’s Compensation of
$9,322.00 and $53,012.14).
(e) Prescribed costs in the sum of $53,327.66.
………………………………..…………
Margaret Y Mohammed
Judge