TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

HCA: No.3487/2003

BETWEEN

JOHNSON ANSOLA Plaintiff

AND

RAMNARINE SINGH

GANESH ROOPNARINE THE GREAT NORTHERN INSURANCE COMPANY LIMITED

Defendants

BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR

APPEARANCES:

Mr. Asaf Hosein for the Plaintiff Mr. Anthony Manwah for the 1st Defendant Mr. Yaseen Ahmed for the 2nd Defendant Mr. Edwin Roopnarine for the 3rd Defendant

Judgment

Facts

On 26th January 2003, the Plaintiff was a passenger in motor vehicle TAR-6606

driven by the Second Defendant, Ganesh Roopnarine. The First Defendant was the

owner of the said motor vehicle. The Co-defendant is the insurer of the said motor

vehicle.

It is alleged that:

(1) The Second Defendant was negligent in his driving, management or operation

of the said motor vehicle.

(2) He was the servant or agent of the First Defendant at the time of the accident.

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The Second Defendant has denied being negligent and alleges that the collision was

caused solely or in part by an unknown third party who negligently drove, managed or

controlled his vehicle in that he negligently overtook another vehicle and came into

the path of motor vehicle TAR-6606. The Second Defendant, in an attempt to avoid a

head-on collision with his vehicle, pulled TAR-6606 pulled to the left causing TAR-

6606 to go off the roadway and thereby causing the left front wheel of that vehicle to

to go into a ditch at the side of the roadway and overturn. The Second Defendant also

alleges that he had the express or implied permission of the first Defendant to drive

the said TAR-6606 to conduct his personal business.

The First Defendant and Co-defendant allege that the Second Defendant was only

authorised to drive TAR-6606 to carry out the business of the First Defendant and was

not authorised to drive the said TAR-6606 for personal use.

ISSUES

The issues therefore are:

(1) Whether the Second Defendant was negligent.

(2) Whether the Second Defendant was the servant and/or agent and/or had

permission of the First Defendant to drive TAR-6606 at the time of the

collision.

(3) Whether the Plaintiff suffered injury, if so the extent thereof and the quantum

of compensation payable therefor.

Disposition and award

I find that the injuries to the Plaintiff were caused by the actions of the Second

Defendant in the driving of TAR-6606. I make the following award against the

defendants.

General damages:

(a) for pain and suffering and loss of amenities --- $150,000.00

(b) Interest thereon at the rate of 12 % per annum from the date of filing of the writ

(c) Future loss of earnings –$35,700.00 x 8 - $285,600.00

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Special damage:

(i) Loss of Earnings - Pre accident loss - $191,500.00

(ii) Medication $5,000.00;

(iii) Medical report $450.00;

(iv) Certified copy and travelling $45.00;

(v) Interest on (i) to (iv) above at 6% per annum from January 27th 2003 to June 30th

2008

(vi) future medication $13,140.00;

(vii)Cost of future surgery $60,000.00;

Costs

The Defendants are to pay the Plaintiff’s costs certified fit for Counsel to be taxed in default of agreement.

Liberty to Apply

Evidence relating to permission to drive

Evidence of the Plaintiff

According to the Plaintiff, the driver of the vehicle was driving at a reasonable speed.

He explained that by reasonable he meant about 60 miles (per hour). He further

clarified that the red car (the overtaking vehicle) was about 50 feet away when the

driver of that vehicle pulled onto the wrong side of the road. He also explained that to

him a reasonable speed would be about 120 kilometres (75 mph). He accepted that he

knew the speed limit was 50 mph but that the speed limit for driving on a highway

was more than that—about 80 to 90 miles. He acknowledged that he did not look at

the speedometer but he formed the view that the driver of the truck was travelling in

excess of the speed limit. He maintained that he would not characterise the driving of

the truck by the driver as speeding: “I wouldn’t call that speeding.”

Ramnarine Singh

The owner of the truck, Ramnarine Singh, attended and gave evidence concerning the

terms of use of the truck. He asserted that he did not know that Ganesh Roopnarine

(the driver of the truck) used to use the truck to make groceries. His answer was:

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“Not really. I never knew he used to go and make groceries. I knew he used

the truck to fill water sometimes. I did not know he used to use the truck to go

by his family.”

He accepted that Ganesh used to keep the truck even on public holidays and that

Ganesh would sometimes work on weekends with that truck. He stated that:

“I told Ganesh he could not do PJ [private jobs], in other words, to make

money with it. I knew he used the truck to fill water for himself and his family

for his private use and I never stopped him. I knew that he used his truck

almost every weekend to fill water. I was never aware he used to make

groceries with the truck.”

He acknowledged making a second statement but claimed that he could not remember

if he said in that statement that Ganesh would use the truck for groceries and personal

use. The statement was tendered into evidence and marked “RS.2”.

In the statement dated 6th April 2004, Exhibit RS.2, he stated:

“I am aware of Ganesh using the vehicle on the weekend when he is not

working because of the difficulty in getting transportation. On the day of the

accident, I was not aware of Ganesh having to use the truck for his personal

use but in any event I would not have objected to it because I trusted him and

he was also a very good worker. I am aware of Ganesh using the truck to

refill his water tanks and to use the truck to visit family members. He would

also use it to make his groceries and any other personal use.”

This was signed by Ramnarine Singh. He did not deny that he signed it.

He attempted to maintain under cross-examination that Ganesh was only supposed to

use the truck for work-related purposes. He denied telling Ganesh to say that he had

no permission to put men in the truck to do any work. When he was asked in cross-

examination by Mr. Ahmed to tell the Court “what you know Mr. Ganesh used the

truck for”, his response was: “Sometimes he would tell me he had to fill water.

Sometimes I saw him in the grocery.” He testified that Ganesh had the truck before

the accident for about 2 years. When he was asked “Did you stop him from going to

the grocery with the truck?”, his response was “Yes and I stopped him a few times

well from going to the grocery with truck. I said he was not supposed to come to the

grocery with the truck.” He claimed that he never knew that Ganesh used to do

anything else, for example, going by friends on weekends. He accepted that he had

given Ganesh permission to fill water in the truck for personal use because sometimes

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he would also wash the truck and he had no water home by him. He therefore

authorised him to collect water, to fill water on the truck and use some of that water

for home use and some of it for washing the truck. When he was asked “Would you

have a problem if Mr. Ganesh told you I want to go to the grocery and then I will

wash the truck?”, his answer was “No, once he washed the truck.”, although he

claimed he would have a problem with Ganesh visiting his family and then washing

the truck. He denied Ganesh telling him he was going to use the truck on the morning

of the accident to do casting at his home.

He denied giving Ganesh permission to carry three passengers in the cab on the day

of the accident, either that day or any other day. He testified the truck was licensed to

carry the driver and two passengers and that the tray of the truck was a steel tray and

there was no bench in it for people to sit.

Ganesh Roopnarine

The driver of the truck, Mr. Ganesh Roopnarine, testified. He claimed that he never

filled water with that truck. He claimed to have a water connection where he lived

and to have had that for a long time. He testified that he did not tell Mr. Singh that he

would be using the truck on that day. He did not tell Mr. Singh that he was going to

use the truck for casting. He testified further that:

“If I had a couple of drinks and asked him to use the truck, he (Ramnarine

Singh) would have said yes if he had known. If I had more than a couple of

drinks he would not have said yes.”

He was asked: “If you told Mr. Singh I need to use the truck to take fellows home

having just finished casting, he would have said yes?” His answer was:“Yes.”

This witness testified in his witness statement that Mr. Singh told him to take the

truck and go to the beach on one occasion. He accepted that he had a wife and two

children and therefore that would be overloading the truck. He also accepted that it

was true that Mr. Singh never authorised him to put men on that truck. He stated:

“I asked him [that is Mr. Singh] to use it for groceries if I had to get

something somewhere, could I use the truck on the way from home. I wash the

truck home by me. Sometimes I would go after and visit family and friends.”

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In cross-examination he accepted that he was saying on oath that he was prepared to

lie for Mr. Singh. He was asked: “If action could only be filed against Mr. Singh, you

would be prepared to maintain lies?” His answer was: “Yes”. He also testified that

he never told Mr. Singh he put the three passengers in the cab, that he knew he was

breaking the law when he put three passengers in the front seat next to him and that he

knew he could have been charged for having extra passengers in that vehicle, that

Mr. Singh did not know he did that, that Mr. Singh never gave him permission to do

that and unknown to Mr. Singh he was carrying unsecured passengers in the tray.

I find the testimony of the driver somewhat curious. However, the following can be

extracted from that testimony. I find as a question of fact that the driver Ganesh

Roopnarine used the truck for the following purposes:

(1) Work during the week;

(2) Work on weekends,

(3) For carrying water including on weekends

(4) For doing his groceries including on weekends

(5) For getting to and from his home.

I find that the owner of the truck knew that Ganesh used to do his groceries with the

vehicle and even though he told him repeatedly not to do it, according to his evidence

in Court, it is clear he did nothing about this and that it was almost accepted that the

driver would use the truck for going to the grocery, whether on his way after work or

otherwise. It is also clear that Ganesh Roopnarine used that truck as his own and that

the initial permission that he had to use the truck to carry water or to do groceries was

subsequently enlarged by Mr. Roopnarine’s sense of propriety over the truck.

I find that Mr. Ramnarine Singh (the owner of the truck) did not place any effective

boundaries on the utilisation of that truck by Ganesh Roopnarine. I find that

Mr. Ramnarine Singh did not know that Ganesh planned to use the truck for the

casting and neither did he know that Ganesh planned to transport more than two

passengers on the day of the accident.

The question, therefore, is whether Mr. Ganesh Roopnarine can be considered the

agent of Ramnarine Singh at the time of the accident. It is clear he would be if he had

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the general permission or the implied permission or consent to use the truck on the

day in question when the Plaintiff was injured. The issue also arises whether he could

be considered as the servant of Mr.Singh at the time or was he in law to be considered

as being on a frolic of his own.

Permission or consent

S. 4(7) Motor Vehicle and Road Traffic Act, Ch.48.50 as amended provides “

Notwithstanding anything in any written law, rule of law or the Common Law, a

person issuing a policy of insurance under this section shall be liable to indemnify the

person insured or persons driving or using the vehicle or licensed trailer with the

consent of the person insured specified in the policy in respect of any liability which

the policy purports to cover in the case of those persons.

I find that the driver had the consent of Mr. Ramnarine Singh. It would have been a

simple matter to stop Mr. Roopnarine from keeping the truck on weekends if the

owner did not consent to his use of the truck for personal business.

AGENCY

Further the fact of ownership of the truck is prima facie evidence that the truck at the

material time was being driven by the owner or by his servant or agent. See the case

of Rambarran v Gurrucharan [1970] 1 WLR 556. The inference is rebuttable. I find

it has not been rebutted. On his own evidence he authorised Mr. Roopnarine to keep

the truck at home on weekends. He knew that Roopnarine used the truck for his

personal use. There is also his signed statement RS2 to this effect.

Vicarious Liability

See Charlesworth on Negligence, 7th

Edition, Chapter 2-112:

“A master is liable for the negligence of the servant if committed in the course

of his employment but is not liable for negligence which is committed outside

the scope of his employment. As Lynskey J. has stated: ‘It is well-settled law

that a master is liable even for acts which he has not authorised provided that

they are so connected with acts that he has authorised that they may rightly be

regarded as modes although improper modes of doing them.’”

This is a question of fact.

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See Paragraph 2-115 under heading “Vehicle entrusted to servant to be driven or

used”:

“When a master’s vehicle is entrusted to the servant to be driven or used in

some other way the master is liable if the servant is negligent while using the

vehicle either wholly or partly on the master’s business or in the latter’s

interest. Conversely, the master is not liable if the servant is negligent while

using it for any other purposes even though the servant has the master’s

permission to use it for those purposes.”

According the Charlesworth, in footnote 76 stated: See Launchbury v Morgans

[1973] AC 127.

“In order to fix vicarious liability for the negligence of the driver of a motor

car or the owner of a vehicle, it must be shown the driver was using it for the

owner’s purposes under delegation of a task or duty. The mere permission to

use it is insufficient to establish vicarious liability and in Norwood v Naven

[1981] RTR 437 CA mere knowledge of its use is not sufficient.”

Diplock J. said:

“I think that the true test can best be expressed in these words: was the

servant doing something that he was employed to do. If so, however

improper the manner in which he was doing it, whether negligent or even

fraudulently or contrary to express orders, the master is liable. If,

however, the servant is not doing what he was employed to do, the master does

not become liable merely because the act of the servant is done with the

master’s knowledge, acquiescence or permission. It is presumed that the

vehicle is being used for the master’s purposes if the servant has the

authority to use it at all.”

In this case, the servant Ganesh Roopnarine was doing what he was employed to do,

namely, driving of the truck. He was doing it in an improper manner. He was doing

it negligently. He was doing it contrary to express orders, namely, not to use the truck

save for work and for carrying water and for getting to and from work. While it is

clear that Ramnarine Singh did not know that Ganesh Roopnarine was using the truck

that weekend and neither did he know that Ganesh Roopnarine was going to be

transporting more than two passengers in the truck or that he was going to use it for

his own purposes, namely, transporting personnel on his private business, Ramnarine

Singh was aware that Roopnarine did not respect any alleged limits on the use of that

truck and consented expressly or impliedly to its general use for personal business.

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I find that there is no evidence that there was ever any prohibition on Ganesh using

that truck for his own purposes. When he used it to collect water, he did so with the

express permission of the owner. When he used it to go to the grocery, he did so with

the express permission of the owner. When he used it to go and visit his family,

based upon witness statement RS.2, I find that he used the truck with the express or

implied permission of the owner. All the evidence is to the effect that Ganesh was

permitted to use that truck as his own on weekends, that he was not acting contrary to

any permission that he had been granted, express or implied, and that the owner of the

truck never put a stop to his use of the truck as he could have if at any point in time he

felt that Ganesh had exceeded his permission to use the truck.

It is clear, therefore, that the permission Ganesh had to use that truck had mutated into

almost a blanket or generalised permission, so much so that Ganesh did not feel that

he had the need to ask Ramnarine Singh specifically for the use of his truck on the

day of the accident. In fact, the witness statement of 6th April 2004 makes it clear he

had also used it to make his groceries and any other personal use. I expressly find that

this reflects the position regarding the use of that truck, namely that Ganesh’s use of

the truck on the Sunday in question though for personal use, had the express or

implied permission or consent of Ramnarine Singh, such as to constitute him the

servant or agent of the owner.

Negligence

I find that the driver of the truck was negligent and caused the accident. The Plaintiff

testified that in fact the driver Ganesh Roopnarine was driving at 60 mph. Ganesh

Roopnarine himself states that at the time of accident he was coming out of a slight

bend with a straight 200 feet in front of him. He could not really recall how far away

in front of him was the car that he claims caused the accident. He stated that he could

see 200 feet in front of him and everything within 200 feet in front of him. He saw

the two cars on their left lane coming up. They were not yet overtaking when he first

saw them. He stated that the slight bend that he was coming out of was just before the

entrance to Hydro Agri. That entrance was about 50 feet from where he came out of

the slight bend and therefore there would have been 150 feet after the Hydro Agri

entrance that would have been within his range of vision. He put his speed at 45 to 50

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kph. He admitted, however, that he was talking while going along and that he was

watching the person he was talking to sometimes, though not all the times. He

claimed that when he saw the red car (that is, the overtaking car) after he saw the

vehicles on the other lane, approximately a minute passed after the red vehicle began

overtaking. He swerved to the left lane to overtake and he saw the red vehicle in his

lane not long, about 45 seconds.

Clearly, the witness’ sense of time was not to be relied upon. He claimed that the

white car that was being overtaken was about 20 feet from the Hydro Agri entrance

and that the red car was about 15 feet in front of him. He claims, however, that he did

not “mash” brakes but he released the X (accelerator) at the time. He accepted that

when he released the X the truck would not reduce its speed immediately to 30 mph.

It was a gradual process which would take about 40 seconds. He maintained that he

did not “mash” brakes. When asked why he did not stop the truck, he said he did not

realise how far away the red car was. He said as a driver, if he saw a vehicle in his

lane, he would tend to slow down. He was asked: “You would not attempt to stop?”

His answer was: “It depends on the distance.” He said “I knew there were unsecured

men in the truck.” He did not make a decision to pull the truck completely off the

road. He made the decision to slow down, pull off the road and allow the car to pass.

He claimed that when he saw the vehicle overtaking it was driving fast, and he felt

fear for the safety for the men in his vehicle. He could not go right because there was

another vehicle to his right. He could not go forward because he might injure them.

He could only go left. He did all in his power to avoid the accident.

I find that he was negligent because he was clearly travelling at an excessive rate of

speed in the circumstances. This has been demonstrated by (a) the evidence of the

Plaintiff and (b) the evidence of the driver himself.

If he was travelling at 45 to 50 kph, there would have been no difficulty in slowing

the vehicle and in fact being able to bring it to a stop.

His evidence is not credible insofar as he claims that the red vehicle was 15 feet in

front of him, having suddenly pulled in front of him.

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In terms of the period of time that he claims to have had that vehicle within his sight,

again the evidence is not believable. At 30 mph a vehicle travels 44 feet per second.

If this witness was coming out of a bend and he had 200 feet visibility in front of him,

he would have had no more than 5 seconds to have had both the red vehicle and the

white vehicle within his contemplation. He would have had significantly less than

this time even if the red vehicle were not travelling at an excessive rate of speed but

were conforming to the speed limit of 30 mph and he himself were conforming to the

speed limit of 30 mph as the combined speeds of those vehicles would be 60 mph or

88 feet per second. Accordingly, he would have had less than 2.5 seconds to have

observed this red vehicle or for the red vehicle to have observed him. This can by no

means be exact but it demonstrates the order of time frames that could have been

expected if this witness were at all credible.

I find this witness’ evidence is unreliable. I find that he did not take sufficient steps to

swerve, to slow down, stop or manoeuvre his vehicle to avoid the collision. The fact

that the truck overturned is consistent on a balance of probability with the fact that the

truck was likely being driven too fast to properly slow it down and take it to the edge

of the roadway without having its wheels enter a ditch. Excessive speed and failing to

take any adequate manoeuvres are both particulars of negligence that I find proved

against this Defendant.

The Plaintiff testified that the driver of the truck was careless, that he did not mash his

brakes in time. If the driver did mash his brakes in time, he would avoid the accident

and not turn over. He said that he did mash his brakes before the accident, but not on

time. I find that this is the most likely cause of the accident.

Quantum of damage

The Plaintiff testified that he was self employed at home before this accident took

place. He had his own operation and he had one person working for him. The

witness accepted that he could sit in a wheelchair, that he was capable of supervising

persons with his eyes as there is nothing wrong with them, and his mouth. He made

about $750.00 per week and he had work all the time, right through. The smallest

sum that he made for the week was about $350.00 and, depending on how the work

ran, he could make up to $1,200.00 per week. He paid his worker $300.00 per week

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and he had to pay for electricity about $200.00 when the bill comes in because the

tools were electric. Out of that $1,200.00, he would take out about $500.00 for

expenses and that would leave him with about $700.00. For the best week, he would

carry home about $700.00 and for his worst week he would carry home about $350.00

per week.

He was 46 years old at the time of trial. For upholstery, it took about two years of

training before he could handle himself, before he could do something on his own.

Within the first year he felt able to do upholstery and joinery took a little more than a

year before he could go on the machine. He claimed to have pain in the right shoulder

still and that since the accident he has done no cupboard work and no joinery. He

accepted that he did not try to get any type of training for any type of work since the

accident, that the only thing that he tried to do was to go back to do the same work.

His family, friends and the church help him out at the moment.

Dr. Santana testified to the effect of the Plaintiff’s injuries as follows:

(1) At the time of the accident, he would have suffered excruciating pain which is

why he would have lost consciousness until the day after.

(2) The Plaintiff sustained:

(i) a right shoulder dislocation;

(ii) a severe comminuted compound fracture of the right lower tibia and

fibula;

(iii) a right talar dislocation.

(3) At present he complains of severe pain in the right ankle, numbness in the

right ankle and foot. He is not able to walk flat on his right sole. He has pain

in the right tibia and fibula and he is unable to stand for long periods.

(4) Examination revealed a fixed equinus of 30%.

(5) There is a diminished range of motion of the right ankle.

(6) X-rays revealed severe post-traumatic osteo-arthritis of the right ankle.

(7) He required an operation (arthrodesis) of the right ankle to correct these

problems at an estimated cost of $60,000.00.

(8) He estimated permanent partial disability of 30%.

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He also explained in his witness statement that post-surgery the Plaintiff would have

had severe pain at the injured sites which would only be relieved with painkillers and

would have to be administered three times a day or when necessary. Now it is

expected that he would still suffer pain on a daily basis for which he would have to

take painkillers for relief. He testified that because of the injuries the Plaintiff

suffered, he would not be able to stand or walk for long periods of time. He is unable

to walk flat on his right sole and has to use a walking stick to move around. He

opined that he did not think the Plaintiff would ever be able to resume his job as an

upholsterer or joiner for the rest of his life, that after the arthrodesis, which would cost

approximately $60,000.00 and which he recommended to relieve pain, he expected

him to suffer severe pain post-surgery which would be relieved by painkillers three

times a day and that he would have to use crutches for six months to move around and

would need assistance to perform normal daily activities. The Plaintiff may also have

to use a walking stick for the rest of his life, even if the surgery performed is

successful. He expected that there would be degeneration of the right ankle joint over

time with the development of post-traumatic osteo-arthritis.

He made it clear that the Plaintiff could not stand for long periods, that even if he had

the operation which was being recommended, he would still not be able to stand for

long periods. However, the Plaintiff could stand and have movement to a limited

extent. He suggested a permanent partial disability of 30% which would be reduced

by 10% if the surgery that he recommended to fuse the ankle were performed. The

operation of arthrodesis would diminish the pain but the cost of this would be severe

limitation of movement of the ankle.

In assessing the Plaintiff’s damages, I am guided by the principles set in the case of

Corneliac v St. Louis [1964] 7 WIR 464, in particular the considerations of:

(1) The nature and extent of the injury sustained;

(2) The nature and gravity of the resulting physical disability;

(3) The pain and suffering which had to be endured;

(4) The loss of amenities suffered; and

(5) The extent to which the Plaintiff’s pecuniary prospects have been

affected.

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The Plaintiff’s injuries have been appropriately described in the report of Mr. Santana

and the level of his pain and suffering has been described. It seems that at the

moment the Plaintiff is not suffering severe pain, although he does have some pain,

and can expect to have more severe pain for a limited period after further surgery is

performed. It is also clear that the Plaintiff’s mobility is affected. While he is able to

walk with a stick, he cannot stand for long periods. He cannot stoop or squat. It is

clear that this would affect the Plaintiff in his ability to personally carry out joinery

and upholstery as he used to before the accident.

Incapacity

I accept that the Plaintiff has been significantly handicapped in the labour market.

The Plaintiff is 46 years old. The question of re-training is not practical. The Plaintiff

himself said that what he tried to do is go back to the jobs that he knew before (that is,

upholstery and joinery) but he was unable to do so. The accident took place in 2003.

It is now 2008. The Plaintiff has been unable to work since that time. I do not find

that the Plaintiff has exaggerated his injuries which, in any event, are supported by the

medical report of Mr. Santana. Apart from not being able to play sports, the main

effect of his injuries is that he is unable to work full time. In fact, the medical

evidence suggests that he is unable to perform upholstery and joinery full time also. It

was suggested that nothing prevented the Plaintiff from supervising his employees, of

which he had one prior to the accident. It was put to him that he could sit in a

wheelchair and supervise verbally. As a matter of logic, this appears to be a workable

solution. As a matter of practicality, the Court is left in considerable doubt as to

whether this could actually occur given the fact that the Plaintiff, although prior to the

accident always had work, would under an arrangement where his sole contribution is

supervising, be at the mercy of his employees. If his employees left, he would be

unable to earn anything whatsoever. I take note that in the current state of the

economy, it is extremely difficult to retain staff, especially staff who might acquire

skills that they can market themselves. There is absolutely no evidence that the

person who worked with Plaintiff is still available to work with him or that the

Plaintiff has other persons available to work with him. In fact, it is clear that in the

five years that have elapsed, the Plaintiff was not able to work and is living on the

kindness of friends, family and the church.

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I do not consider it at all practicable for the Plaintiff to acquire alternative unskilled

labour as either a newspaper vendor or a security guard. The physical requirements of

being s security guard alone would disqualify him from such a position. Even as a

watchman, the effect of this would be severely compromised as pointed out by

Mr. Santana.

MULTIPLIER

At the date of trial, the witness said he was 47 years old. He could have had a working

life of at least 18 and possibly more given that he was self employed. At the date of

his witness statement, he was 46 years old. At the date of the accident in 2003 he

would have been 41 years old. The Plaintiff’s attorney proposed a multiplier of 10

for future loss of earnings. I propose to use a multiplier for future loss of 8.

I am guided by the Privy Council case Privy Council No. 86 of 2002, Peter

Seepersad v Theophilus Persad & Capital Insurance Ltd. delivered on 1st April

2004.

In that case the appellant who suffered personal injuries was 37 years old at the date

of trial. I note that at paragraph 18 the Privy Council took into account the current

discount rate on treasury bills in Trinidad and Tobago as being between 5% and 6%

and assessed a multiplier of 16 years in order to provide proper compensation to the

appellant taking into account interest rates in Trinidad and Tobago and making some

allowance for the contingencies of life.

I take into account that in the Seepersad case the multiplier used was 16 for a plaintiff

37 years old at the date of trial.

I note also that interest rates in Trinidad and Tobago have been on the increase and

are currently in excess of 8%.

I consider that the earning capacity of the Plaintiff would not be speculative

The multiplier of 16 in the Peter Seepersad case was for future loss of earnings, loss

of earnings pre-assessment having been quantified

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I find that the Plaintiff, being of limited education and unable to read or write

properly, is significantly impaired in the labour market to the extent of 100%. I find

that he has not exaggerated or attempted to exaggerate his net earnings. He stated

frankly that for his best week he would carry home about $700.00 per week and for

his worst, he would carry home about $350.00 per week. He would make $350.00

when he was relaxing and when he hardly had work. He testified that he did have

records for the amount of money he made per month. He had accounting records but

he did not have them with him.

I find that it is likely that the Plaintiff would have earned $700.00 per week for most

weeks of the year. It is probable that he would have taken time off equivalent to a

vacation and reduced the amount of work that he produced for a period. In all

likelihood, I find that period would be two weeks. I accept his statement of his net

earnings of $700.00 per week which is not at all an excessive sum for someone who is

performing upholstery and joinery services. I find that he would have earned this sum

net for 50 weeks and that he would have earned the sum of $350.00 per week for two

weeks.

50 x 700 - $35,000.00

2 x 350 - $ 700.00

To these future annual earnings of $35,700.00 I apply a multiplier of 8.

The pre-assessment loss from 2003 to 2008

26th January 2003 to June 30th 2008 – 5 years 5 months

5 years x $35,700.00 – $177,500.00

20 weeks x $700.00 – $ 14,000.00

TOTAL - $191,500.00

From 2003 and 2008, 25th June 2008, on the sum of $191,500.00 interest would run

thereon at the rate of 6% per annum.

FUTURE LOSS OF EARNINGS

$35700.00 *8 -$285,600.00

17

GENERAL DAMAGES FOR PAIN AND SUFFERING AND LOSS OF

AMENITIES

I consider the following cases relevant:

Wiley, Wiley & Titus v Sorzano (First Plaintiff), High Court Action No. S-733 of

1992, decision of Justice Bharath delivered 25th March 1997. The sum of $50,000.00

was awarded in respect of a 48-year-old woman with a comminuted supra-condular

fracture of the left femur (requiring a bone graft plate, stymen pin and traction,

fracture) of the first metacarpal, 1-inch shortening of leg and restriction of knee

flexion. Further surgery was required two years later. The injury left unsightly

scarring and wasted left quadricept muscles and caused osteo-arthritis of the knee.

Although the injury is not the same as the instant case, I find that the effects of the

injury appear to be comparable.

The injuries in the Peter Seepersad case were wedge compressions fractures of the L1

and T12 vertebrae, which were healed. The L5 S1 disc was prolapsed leading to

continuing pain and incapacity. In that case, the Privy Council declined to interfere

with an award of $75,000.00 in respect of general damages

In the case of Baldor v Prestige Car Rentals, Bankers Insurance & Patrick

Alamani, High Court Action No. 442 of 2000, Justice Mendonca in the judgment

dated 22nd November 2000 assessed damages in respect of an 18-year-old female

pedestrian who suffered severe knee injuries including a ruptured anterior ligament of

the knee, a ruptured posterior ligament of the knee, severe damage to the lateral

perineal nerve of the knee and rupture of the medial collateral ligaments of the knee

causing complete instability. She had no control over her foot as the result of nerve

damage and was unable to bear weight. Nine months after the accident, she

underwent four hours of surgery for the repair to the anterior ligament. As a result

thereof, the plaintiff was able to bear weight on crutches. Seven months later, she was

able to walk but limited to approximately 100 yards. She needed to use crutches or at

best a walking stick at all times and had to wear a knee brace. She was unable to sit

or stand for any length of time and full weight bearing was difficult. She had

significant foot drop and numbness of the dorsum of the foot. She required a foot

drop splint at all times and recovery of the lateral perineal nerve was very slow.

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There was major scarring of the knee and likely future scarring after further surgery

which was contemplated. Her permanent partial disability was assessed at 40% and

three further surgical procedures were required to repair the ligaments and the foot

drop. The best outcome contemplated from surgery was that the plaintiff would still

be left needing to use a walking stick and she would always be limited in her

ambulation, although after surgery she would be able to walk a few hundred yards

without significant pain or having to stop to rest. Her permanent partial disability

would be reduced but still significant. She suffered severe pain at the time of the

accident and severe pain at the time of surgery. It was contemplated that her future

surgeries would be equally painful.

I find that the effects of this injury also appear to be similar to the effects of the

injuries sustained by the instant Plaintiff. At the time of trial, the plaintiff continued

to complain of pain and found it painful to climb up and down stairs in her home and

she was unable to sit or stand for long periods without experiencing cramp. The brace

that she wore also caused her sleep to be disturbed. He awarded general damages of

$155,000.00 for pain, suffering and loss of amenities. In that case, he awarded a

further $16,650.00 for loss of pecuniary prospects. The Learned Judge did not

consider or accept that the plaintiff would be unable to work other than during the

periods of rehabilitation. In that case, the plaintiff had attended secretarial school and

had taken computer and other courses, and had been employed as a part time clerical

worker at a salary of $500.00 per month.

In the instant case, the Plaintiff was not qualified for a sedentary job. He had little or

no education. He was not as young as the plaintiff the Baldor case and with his lack

of education and his qualification only for occupations which required some degree of

flexibility and movement and his exceedingly poor prospects for re-training, I find

that he is unlikely to be able to secure meaningful employment and that his handicap

on the job market was 100%.

I find also the case of Webb v Seereeram Brothers, Civil Appeal No. 130 of 1998

delivered on 1st June 2001 to be relevant. In that case, the appellant was a Civil

Engineer. He sustained a compound fracture, and dislocation of his left ankle. He

underwent surgery which involved total wound debridement and external fixation of

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the ankle. There was a second surgical procedure and he was discharged from

St. Clair Medical Centre after 25 days. He remained at home for a month and then

was re-admitted for a week during which time he had an operation to fuse the ankle.

Upon examination in Canada three months later, it was discovered that he had septic

arthritis and osteomyelitis with the failure of the previous left ankle arthodysis with

malunion. The appellant remained in hospital and had an operation 20 days later and

was discharged 15 days thereafter. He testified to severe pain at the time of injury

and continuing pain. He was in his 50s at the time of the appeal and it was held that

he was not likely to be able to compete in the job market for the type of position he

formerly held.

General damages were awarded in the sum of $60,000.00 with a deduction for

contributory negligence. In that case, the appellant was awarded six months’ loss of

earnings. His injuries appear to have been less long lasting in their effect than the

injuries in the instant case.

I consider also the case of Caribbean Molasses Company Trinidad Ltd v Ganace

delivered on 27th July 1983, Civil Appeal No. 7 of 1979. In that case, the respondent

was a taxi driver aged 46 at the date of trial. He suffered a compound comminuted

fracture of the right tibia and fibula and a fracture of the right femur. Although the

injury is different I consider the effects thereof insofar as it relates to the instant

Plaintiff. The leg was put in a cast, plaster applied to the fibula and the tibia and

femur were treated by traction. A pin was inserted in the tibia. Approximately five

weeks after the accident, a rod was inserted in the bones. He had an infection of the

wound which subsequently subsided and he had cramps which continued up to the

date of trial and was in plaster for over six months. Two years after his accident, the

femoral fracture was united but the lower segment rolled out and shortened. It was a

perfect uniting, and the tibia and fibula had united in reasonable alignment. The limbs

were 3 inches short. The knee movement was restricted from 180 degrees to 160

degrees, normal movement being 180 degrees to 65 degrees. The movement was

severely limited. The ankle joint was stiff and could just reach the planta position.

He could not drive a motor vehicle and he walked with crutches because of the

shortness of his leg. Surgery was recommended to correct the alignment of the leg

and to lengthen the leg. The respondent was described as physically incapacitated but

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otherwise mentally and physically fit. The possibility that surgery would be

successful in restoring him to normality was regarded as remote and it was not

thought unreasonable that the respondent did not seek employment in a field other

than taxi driving.

The Court of Appeal increased the award for general damages from $40,000.00 to

$126,000.00, of which $96,000.00 represented loss of prospective earnings and

$30,000.00 damages for pain, suffering and loss of amenities. The decision in this

case was delivered 25 years ago. That award, according to Daly’s on Damages

updated supplement, adjusted to November 2002, is approximately $109,000.00.

I accept that though this is only an approximation to assessing the purchasing power

of the award when it was made and bringing it into line with the purchasing power of

money at a later date and that the methodology thereof is yet to be endorsed by the

Court of Appeal. Nevertheless I find it is a useful guide inter alia :

(1) To provide a sanity check on a contemplated award in relation to

matters where the injuries are found to be sufficiently similar to a case under

consideration after careful analysis.

(2) To obtain the benefit from previously decided cases of the higher

Courts where awards of lower Courts have been analysed and

reviewed.

In the instant case, I find the above cases provide sufficient evidence of a range of

awards such that $75,000.00 to $160,000.00 would not be unreasonable in the instant

case.

Because the Plaintiff is undergoing further surgery at a cost of $60,000.00 which is

expected to relieve his pain and reduce his disability to a small extent, I award the

sum of $150,000.00 as damages for pain, suffering and loss of amenities and the sum

of $60,000.00 for the cost of further surgery.

Conclusion and award

General damages:

(a) for pain and suffering and loss of amenities --- $150,000.00

(b) Interest thereon at the rate of 12 % per annum from the date of filing of the writ

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(c) Future loss of earnings –$35,700.00 x 8 - $285,600.00

Special damage:

(i) Loss of Earnings - Pre accident loss - $191,500.00

(ii) Medication $5,000.00;

(iii) Medical report $450.00;

(iv) Certified copy and travelling $45.00;

(v) Interest on (i) t o(iv) above at 6% per annum from January 27th 2003 to June 30th

2008

(vi) future medication $13,140.00;

(vii)Cost of future surgery $60,000.00;

Costs

The Defendants are to pay the Plaintiff’s costs certified fit for Counsel to be taxed in default of agreement. Liberty to Apply

Dated the 30th day of June 2008

Peter A. Rajkumar

Judge