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THE REPUBLIC OF TRINIDAD & TOBAGO
IN THE HIGH COURT OF JUSTICE
CV-2009-03527
Between
Ian Gonzales (Claimant)
v
Scaffolding Manufacturers (Trinidad) Limited
First Defendant
And
Nu-Iron Unlimited
Second Defendant/Ancillary Claimant
And
Lexicon Inc.
First Third Party
Atco Caribbean Limited
Second Third Party
Before the Honourable Mr. Justice A. des Vignes
Appearances:
Mrs. Lynette Maharaj S.C and Mr. Kingsley Walesby instructed by Ms. Shaheera
Allahar for the Claimant
Mr. Richard Jagai instructed by Ms. Deedra Maharaj for the First Defendant
JUDGMENT
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Claimant’s pleaded Claim
1. The Claimant’s claim is for damages for personal injuries, loss and damage that he sustained
on 8th
October 2005 during the course of his employment with the First Defendant, at the
premises of the Second Defendant. He alleges that the injuries and damages he sustained
were caused by the negligence and/or breach of statutory duty of the First and/or Second
Defendants, their servants or agents.
2. On 3rd
June 2013, the Claimant filed a Notice of Discontinuance against the Second
Defendant and at the trial, the Second Defendant sought and obtained leave of the Court to
withdraw the ancillary claims against the Ancillary Defendants. Accordingly, for all intents
and purposes, the issues of liability and quantum to be determined in this action arise as
between the Claimant and the First Defendant only.
3. The Claimant, who was born on 10th
February 1985, was employed by the First Defendant as
a Rigger. By his Re-Re-Amended Statement of Case filed on 13th
May 2011, he alleges that
the First Defendant was engaged in the business of building scaffolding and on 8th
October
2005 was so engaged at the Second Defendant’s premises at Point Lisas Industrial Estate,
Couva.
4. On 8th
October 2005, the Claimant reported for work at the Second Defendant’s premises for
the purpose of building scaffolding around a pipe 50 feet above the ground.
5. On that day, the Claimant put on his harness and entered the lift which elevated him 50 feet
above the ground. He exited the lift and walked along the pipe of scaffolding to attach his
harness to the lifeline which was approximately 7 feet away from the lift. After taking four
steps towards the lifeline, the Claimant's foot slipped and he fell to the ground. As a result,
the Claimant suffered injuries, loss and damage.
6. The Claimant alleges that the accident and the injuries, loss and damage were occasioned by
the negligence and/or breach of statutory duty of the First Defendant, its servants and/or
agents.
First Defendant’s pleaded Defence
7. The First Defendant admits that the Claimant was employed by it as a Rigger. It alleges that
at the material time it had been hired by Atco Caribbean Ltd, to erect access scaffolding for a
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pipe around a ‘reformer’ at the Nu-Iron Plant in the Point Lisas Industrial Estate. This
scaffolding was intended to be used by third parties to gain access to the pipe, in order to
weld the same.
8. The Claimant’s duty on the day of the accident was to hoist scaffolding material
approximately 50 feet off the ground to the ‘job site’, which was located at the edge of the
reformer. The Claimant was responsible for passing scaffolding to the other Riggers who
were responsible for assembling the scaffolding around the pipe.
9. The First Defendant denies the allegation that there was a lift which was used by the
Claimant to get to the job site. The First Defendant contends that the established procedure
for its employees to reach the job site was as follows:
a) The First Defendant’s employees would hold a tool box meeting on arrival at the site;
b) Thereafter, the site would be cordoned off to prevent other workers from passing
beneath and all workers would have their safety equipment including a safety harness
with two lanyards attached;
c) The employees would get to the job site by ascending stairs which were already located
on either side of the reformer and which took the employees to the height of the job site;
d) The employees would then exit the stairs onto a catwalk which was about2 feet wide
and which had hand railings on both sides as well as a lifeline overhead. The employees
were supposed to safely latch their lanyards onto this lifeline at all times;
e) The employees would then walk along the catwalk and latch their lanyards onto a beam
strap which was secured with a steel beam overhead.
f) The employees would then step over the hand railing onto another steel beam which ran
underfoot and perpendicularly to the catwalk and which was about 2 or 3 feet wide.
g) The employees would then walk along the beam underfoot to the job site at the edge of
the reformer while still being attached to the steel beam overhead.
h) Employees could hook one lanyard at a time onto another fixed point on the reformer so
that at all times the workers were attached to a fixed point.
10. The First Defendant alleges that this procedure ensured that the employees would be able to
move freely and safely to the job site without falling.
11. However, the First Defendant says the Claimant did not follow the procedure and tried to
reach the job site via an alternative and unsafe method, which was not part of the First
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Defendant's system of work. It denies that the Claimant had to walk upon a pipe as alleged by
the Claimant.
12. It contends that the type of footwear which the Claimant was wearing on the day of the
accident was suitable for the performance of his duties and that specialised footwear was not
necessary.
13. The First Defendant also contends that there was a tool box meeting on the day of the
accident, at which the employees, including the Claimant, were reminded of the necessity of
maintaining 100% tie-off at all times and of using the stairs to get to the job site. Further, the
First Defendant denies that the Claimant was not trained but asserts that he was adequately
trained prior to the accident.
14. The First Defendant also contends that neither the Second Defendant nor the First Ancillary
Defendant had put safety procedures in place for the First Defendant. They left the First
Defendant to its own devices to formulate and implement a safe system for performing its
subcontracted work, which it did, without any complaint by the Second Defendant or the
Ancillary Defendants.
15. Accordingly, the First Defendant denies each and every allegation of breach of statutory duty
and/or negligence made by the Claimant against it.
16. In the alternative, the First Defendant says that the Claimant contributed to his injury by his
own negligence and that the Claimant willingly accepted the risk of such damage. They
further allege that the injuries and loss claimed by the Claimant are exaggerated and/or
excessive and that he failed to mitigate his losses.
17. The First Defendant further alleges that the Claimant returned to work with the First
Defendant as a laborer as well as a driver from August 2006 to 11th
February 2007, during
which time he had no difficulty performing his tasks. The Claimant then left the First
Defendant’s employ of his own volition.
18. The First Defendant also denies the prognosis contained in the Claimant’s medical report and
contends that the Claimant received workmen’s compensation in the sum of $13,403.28,
which sum ought to be deducted from any award granted to the Claimant for loss of earnings.
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Liability
The Evidence
19. In support of the allegations of breach of statutory duty and/or negligence, the Claimant
relied on his evidence as contained in his witness statement filed on 4th
June 2012.
20. In support of its Defence on liability, the First Defendant relied on the evidence of Phillip
Archie, Desmond Durham and Tarran Singh. Although a witness statement was filed in the
name of Shane Rambharath, he was not called to give evidence at the trial.
21. By Rule 29.9 of the Civil Proceedings Rules 1998 (as amended), if a party has served a
witness statement and he wishes to rely on the evidence of the witness who made the
statement, he must call the witness to give evidence unless the court orders otherwise. Since
Mr. Rambharath failed to attend at the trial to put into evidence his witness statement and to
be cross-examined thereon and the First Defendant did not advance any good reason for his
non-attendance, I propose to exclude his witness statement from my consideration of the
issues of liability.
The Issues
22. The following issues arise for determination in this matter:
a) Did the First Defendant fail to provide a safe system of work for the Claimant?
b) Were the Claimant's injuries caused by or contributed to by his negligence?
The Law
23. The Claimant's claim against the First Defendant is based on alleged breaches of sections 20
and 21 of the Factories Ordinance Chapter 13 No.2 as well as on common law negligence.
24. Section 20(1) of the Factories Ordinance provides as follows:
"All floors, steps, stairs, passages and gangways and all hand-rails and guard-rails
shall be of sound construction and properly maintained."
25. Section 21 provides as follows:
"(1) There shall, so far as is reasonably practicable, provided and maintained safe
means of access to every place at which any person has at any time to work'
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(2) Where any person is to work at a place from which he will be liable to fall a
distance of more than ten feet, means shall be provided, so far as is necessary and
practicable, by fencing or otherwise for ensuring his safety."
26. At common law, the term "system of work" is used to describe:
a) the organisation of the work;
b) the way in which it is intended the work shall be carried out;
c) the giving of adequate instructions (especially to inexperienced workers);
d) the sequence of events;
e) the taking of precautions for the safety of the workers and at what stages;
f) the number of such persons required to do the job;
g) the part to be taken by each of the various persons employed; and
h) the moment at which they shall perform their respective tasks.1
27. The duty to prescribe a safe system of work is neither one to provide perfection nor an
absolute duty. It is a duty "to take reasonable steps to provide a system which will be
reasonably safe, having regard to the dangers necessarily inherent in the operation. In
deciding what is reasonable, long established practice in the trade, although not necessarily
conclusive, is generally regarded as strong evidence in support of reasonableness."2
28. Further, the fact of prescribing a safe system of work does not sufficiently discharge an
employer's duty, unless it is also accompanied by steps reasonably to ensure it is followed or
operated3, such as, for example, inspection and supervision. An employer does not discharge
his duty by establishing a system and turning a blind eye to its breach.4
29. 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 purpose, "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 property
so that he becomes blameworthy in part as an author of his own wrong.5 When contributory
negligence is set up as a defence, its existence does not depend on any duty owed by the
1 Charleworth & Percy on Negligence (10th Ed.) paragraph 11-66 @ page 841
2 General Cleaning Contractors Ltd v. Christmas [1953] AC 180 at 195 per Lord Tucker
3 McDermid v. Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 919
4 McGregor v. A.A.H. Pharmaceuticals 1996 S.L.T. 1161
5 Charleworth & Percy on Negligence (10th Ed.) @ p.170
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injured party to the party sued. All that is necessary to establish such a defence is to prove
that the injured party did not in his own interest take reasonable care of himself and
contributed, by this want of care, to his own injury. The burden of proving contributory
negligence lies on the Defendant; it is not for the Claimant to disprove it. If the Defendant's
negligence or breach of duty is established as causing the damage, the onus is imposed on the
Defendant to establish that the Claimant's contributory negligence was a substantial or
material co-operating cause. The Defendant must first prove that the Claimant failed to take
ordinary care of himself or such care as a reasonable man would take for his own safety and
secondly, that his failure to take care was a contributory cause of the accident.
Analysis of Issues
Safe system of work
30. In considering this issue, I am of the view that I need to consider and determine the following
issues of fact:
I. (a) Did the First Defendant hold a safety orientation meeting before the
commencement of scaffolding construction?
(b) Did the First Defendant, through its foreman, instruct its employees, and
in particular, the Claimant to follow the procedure of maintaining 100% tie off at
all times?
II. Was there a lift in operation at the site which was used by the Claimant or did he
use the stairs or some alternative unsafe method to get to the location where he
was required to perform his duties?
III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and
a lifeline overhead onto which the employees of the First Defendant could latch
on their lanyards?
IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the
Claimant to perform his duties at a level of 50 feet or at a lower level?
V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from
the place where the Claimant was required to perform his duties?
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VI. Did Mr. Rambharath require the Claimant to walk across a hazardous and/or
slippery pipe for several feet without his harness being attached in order to
perform his duties?
VII. Did the First Defendant provide to the Claimant adequate health and safety
training and/or orientation in accordance with accepted industrial standards
before commencing work?
VIII. Did the First Defendant fail to provide the Claimant with suitable protective
equipment (including but not limited to non-slip footwear, footwear with special
grips or non-slip covers for his shoes) to protect him from slipping?
IX. Did the First Defendant fail to implement suitable/sufficient protection measures
to prevent the Claimant from injuring himself from falling, including the
provision of railings and/or safety nets?
X. Did the First Defendant fail to carry out a suitable risks assessment?
XI. Were the passageways and gangways which the Claimant was required to use of
unsound construction and/or not properly maintained?
XII. Was there an absence of fencing or other means to ensure the Claimant's safety?
XIII. Did the First Defendant fail to provide adequate supervision?
Evaluation of the evidence
I. (a) Did the First Defendant hold a safety orientation meeting before the
commencement of scaffolding construction?
(b) Did the First Defendant, through its foreman, instruct its employees, and in
particular, the Claimant to follow the procedure of maintaining 100% tie off at all
times?
31. In his witness statement, the Claimant gave evidence that he did not recall attending any
safety orientation from the First Defendant or the Second Defendant. He also did not recall
meeting with or observing any safety officers employed by the First Defendant or Second
Defendant on the site. However, under cross-examination, he admitted that there was a "tool
box" meeting held by the foreman, Shane Rambharath, at which he was present. He also
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admitted that the procedure for the performance of the job was explained to the workers and
they were instructed to maintain 100% tie off.
32. Accordingly, I hold that the First Defendant held a safety orientation meeting before the
commencement of scaffolding construction on 8th
October 2005 and that Mr. Rambharath
instructed the First Defendant's employees, including the Claimant, to follow the procedure
of maintaining 100% tie off at all times.
II. Was there a lift in operation at the site which was used by the Claimant or did he use
the stairs or some alternative unsafe method to get to the location where he was
required to perform his duties?
33. At paragraph 4 of the Re-Re-Amended Statement of Case, the Claimant alleged that he
entered a lift which took him to a height of 50 feet above the ground. However, in the Reply,
(at paragraph 5.4) he alleged that he "ascended to the job site using one of the existing means
to get to the job site above the ground but does not recall if there were stairs on either side of
the Reformer and puts the First Defendant to strict proof thereof. The Claimant states that he
was instructed by Shane to follow the other workmen going to the job site which he did."
Further, (at paragraph 7 of the Reply) he stated that he reached the location where he had
been assigned to work by using the same means of access used by the other workers in
accordance with Shane's instructions to follow them. Then, (at paragraph 11 of the Reply), he
alleged that he was assigned to work on a steel pipe located below the job site and that he was
required to ascend a ladder to reach the said location.
34. In his witness statement, the Claimant stated (at paragraph 11) that before he started to work,
"Shane told me to follow Damion to the jobsite.....I then put on my harness with 2 lanyards
attached and followed Damion to the job site. Damion continued to climb to higher level
whilst I remained on a pipe at a lower level in order to assist the other workers in hoisting up
the materials from the ground."
35. Under cross-examination, however, the Claimant responded that he was about 40-45 feet
above ground at the time he fell and "I got up there by a man-lift" and he insisted that what
he was saying in court was true.
36. Mr. Durham in his evidence referred to the workers going up the stairs although he did not
look up to see who was going up the stairs as he was focusing on his work.
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37. On the other hand, Mr. Tarran Singh stated that to reach the job site the procedure was to
climb up a set of stairs which were located at the side of the reformer and which would take
the workers to the top. As the senior rigger on the site, he was the first person to ascend the
stairs to get to the job site. He also stated that there was not a lift in operation on that day and
at all times access to the scaffolding was by the stairs and the catwalk.
38. Under cross-examination, Mr. Singh stated that the Foreman gave instructions to use the
stairway to get to the reformer and "We got from ground to top by using steps." However,
although he was in charge of Riaz and the Claimant, he did not look back for him because "I
was going straight to top and I thought he knew what he had to do."
39. Having considered the evidence on both sides, I have come to the conclusion that the
Claimant is not speaking the truth when he said he used a man-lift to get up to the height
from which he fell. I believe the evidence of the First Defendant's witnesses that the
procedure required all the workers who were involved in the construction of the scaffolding
at the edge of the reformer to use the stairs to get to the job site and that the Claimant
followed the other workers, such as Tarran Singh and Damion Doolcharan, up the stairs.
III. Was there a catwalk at the height of 50 feet with hand-railings on both sides and a
lifeline overhead onto which the employees of the First Defendant could latch on their
lanyards?
40. In his witness statements, the Claimant did not refer to the existence of a catwalk with hand-
railings and an overhead lifeline. However, under cross-examination, he gave the following
evidence:
"I agree there was catwalk to get up to reformer which was about 2 feet wide
with railings on both sides of it. They were about 3 feet high on both sides. The
floor had metal grating. I can’t recall a lifeline running above that catwalk. I
agree workers were to attach lines to life line. Workers were supposed to walk
along the catwalk and attach to a beam strap. Workers were to step over the
railing and then walk onto another beam."
41. Based on this evidence of the Claimant and the evidence of Mr. Taran Singh (at paragraph
10), I am satisfied that there was a catwalk at the job site approximately 2 feet wide with
railings on both sides thereof. Those railings were approximately three feet high. In addition,
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there was a lifeline overhead onto which the workers were supposed to attach their lanyards
in order to maintain 100% tie off.
IV. Did the First Defendant's foreman, Shane Rambarath, give instructions to the
Claimant to perform his duties at the level of 50 feet or at a lower level?
42. In the Re-Re-Amended Statement of Case, the Claimant alleged that he put on his harness
and entered the lift which took him to a height of 50 feet above the ground. In the Reply, (at
paragraph 5.2) the Claimant described the "job site" as being 50 feet above the ground. He
then stated (at paragraph 5.4) that he ascended to the "job site" using one of the existing
means to get there. He also alleged that he was instructed by Shane Rambharath to follow the
other workmen going to the "job site" which he did. He then alleged that Mr. Rambharath
instructed him to hoist the material up to the job site from a lower beam and he complied
with his instructions to exit at a lower beam which did not have a catwalk. Upon reaching the
lower level, the Claimant was required to walk approximately 7 feet across a narrow steel
pipe measuring approximately 10-12 inches in circumference which had no handrails or
catwalk in order to reach the overhead lifeline onto which he could fasten his lanyard.
43. In his witness statement, the Claimant gave evidence that "Shane told me to follow Damion to
the job site... Shane also told me that I would have to go to a lower beam in order to assist
the other workers and to assist them by hoisting the material from the ground up to the job
site from the lower beam." Under cross-examination, the Claimant insisted that he was
instructed to work on the lower beam.
44. In its Re-Re-Amended Defence, the First Defendant pleaded that there was an established
procedure to reach the job site which was approximately 50 feet off the ground and that the
Claimant did not follow that procedure. According to the First Defendant, "the Claimant did
not follow the procedure set out above by not ascending the said stairs all the way up to the
catwalk but instead tried to reach the said job site via an alternative, unsafe method which
was no part of the said system of work." Further, the First Defendant alleged that any injury,
loss and damage that the Claimant may prove was solely caused by him or in the alternative
was contributed to by his own negligence.
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45. However, at the trial, the witnesses called by the First Defendant were not able to give
evidence in support of the pleaded Defence. Firstly, Desmond Durham was not able to shed
any light on the actual instructions given to the Claimant by the foreman. In his witness
statement, he stated that "Before the job started that morning the foreman assigned each of us
a specific job for the day" and, under cross examination, he stated that the foreman gave the
workers other duties but he could not recall what he gave them to do.
46. In his witness statement, Mr. Tarran Singh stated that at the tool box meeting the foreman
explained to the workers the procedure to get to the work area and how the job was to be
performed and he warned the workers about maintaining a 100% tie off at all times once they
reached the top of the stairs. He also said "at no point while I was climbing up the stairs did I
see Ian... His job at the time was to stay on top the scaffold and to lend whatever assistance
to Raiz and I by passing material and whatever equipment or tools we would have needed to
erect the scaffold." From his knowledge of the site and the procedure for access to the
reformer, walking on a pipe never formed part of the proper procedure. Under cross-
examination, Mr. Singh gave the following responses:
"All I can say with regard to Ian is that he was given role to hoist material to top to help me.
Next thing I knew he was on ground. Where I was working my tie off was beam. This beam
was beam that we were erecting scaffolding on. I don’t know if there was any other beam or
pipes below. It is not correct that he was below us to pass material to us. My evidence is
based on what I recollect and not on what would usually happen..... I was senior rigger. I
was in charge of person pulling up material. I was in charge of Riaz and Ian. I did not look
back for Ian. I did not see him. I was going straight to top and I thought he knew what he had
to do."
47. Based on this evidence, therefore, Mr. Singh did not state what were the specific instructions
given to the Claimant by Mr. Rambharath and he was not able to contradict directly the
Claimant's evidence that he was instructed to work at the lower level.
48. As earlier stated, the First Defendant failed to adduce any evidence from the foreman, Mr.
Rambharath with regard to the specific instructions given to the Claimant. The Claimant's
Attorneys submitted that in the light of the evidence given by the Claimant as well as the
evidence of Tarran Singh and Phillip Archie, it was incumbent upon the First Defendant to
lead direct evidence from Mr. Rambharath on this issue. Having failed to do so or to give to
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the Court any reason for his absence, the evidence of the Claimant remained unchallenged
and should be accepted by the Court. Further, they submitted that the Court is entitled to
draw the adverse inference that the evidence of Mr. Rambharath would not have helped the
First Defendant's case and would have supported the Claimant's contention that on the day of
the incident, Mr. Rambharath issued an express instruction to the Claimant to work at a lower
level in order to hoist the scaffolding from the ground to the employees who were working at
the higher level.
49. In Wisniewski v. Central Manchester Health Authority6, Brooks LJ stated that:
"1. In certain circumstances a court may be entitled to draw adverse inferences from the
absence or silence of a witness who might be expected to have material evidence to give
on an issue in an action.
2. If a court is willing to draw such inferences they may go to strengthen the evidence
adduced on that issue by the other party or weaken the evidence, if any, adduced by the
party who might reasonably have been expected to call the witness.
3. There must, however, have been some evidence, however weak, adduced by the
former on the matter in question before the court is entitled to draw the desired
inference; in other words, there must be a case to answer on that issue.
4. If the reason for the witness' absence or silence satisfies the court then no such
adverse inference may be drawn. If, on the other hand, there is some credible
explanation given even if it is not wholly satisfactory, the potentially detrimental effect
of his/her absence or silence may be reduced or nullified."
50. This test was applied in our jurisdiction by Justice Tiwary-Reddy in Marysia Perreira v.
British American Insurance Company (Trinidad) Ltd 7 where she held that since the
Defendant might reasonably have been expected to call two key witnesses in order to adduce
oral and documentary evidence but failed to do so, she was entitled to draw adverse
inferences against the Defendant.
51. In Ian Sieunarine v Doc’s Engineering Works (1992) Limited8 delivered by Rajnauth-Lee
J (as she then was) stated as follows:
6 (1998) 7 PIQR 323 at 340
7 HCA No. S-781 of 1999
8 No. 2387 of 2000
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“Having considered the evidence as a whole, the various submissions advanced on behalf
of the parties, having carried out the balancing exercise suggested by the authors of
Phipson as to the weight of the written statement of the plaintiff, and having examined the
evidence of the witness Ragoonath, the Court is satisfied that a prima facie case of
negligence has been sufficiently made out.
In the absence of the witnesses Dipnarine and Simmons, the Court is entitled to infer that
the defendant has chosen to withhold evidence which would either have supported the
plaintiff’s case or at the very least would not have displaced the prima facie case.
Accordingly, the Court finds that the prima facie case has become a strong case in the
absence of any evidence to dispute the matters established by the evidence of the plaintiff
and his witnesses.”
52. Adverse inferences were also drawn by Rahim J. in Surujbally Samaroo v Kishore
Ramsaroop and Ann-Marie Ramsaroop9. After examination of the authorities, Rahim J
outlined the test to be considered as follows:
“Thus the Court must be satisfied first that a prima facie case had been made out on a
material issue or that there is a case to answer on that issue. It is then for the Court to
consider whether the proposed witness may have been expected to give material evidence
on that issue. If the answer is yes, the Court must then have regard to the reason for the
witness’ absence and can then draw adverse inferences due to the absence of evidence.”
53. In my opinion, on the pleadings, it was critically important for evidence to be led on both
sides as to the specific instructions given to the Claimant by Mr. Rambharath. The Claimant
gave evidence that he was instructed by Mr. Rambharath to work at a lower level in order to
assist the other workers by hoisting the material from the ground up to the job site from the
lower beam. Therefore, the First Defendant had a case to answer. Since neither Mr. Durham
nor Mr. Singh were able to give any evidence about the instructions given to the Claimant by
Mr. Rambharath, it was reasonable to expect that Mr. Rambharath would be called by the
9 Claim No. CV2007-03190 / H.C.A. No. S-1295 of 2005 at paragraph 58
Page 15 of 60
First Defendant to say what instructions he gave to the Claimant and to subject himself to
cross-examination so that the Court could properly evaluate the evidence in support of the
competing versions. As expected, the First Defendant filed a witness statement in the name of
Mr. Rambharath but he failed to appear at the trial. Most importantly, the First Defendant's
Attorneys did not provide the court with any or any reasonable explanation for his failure to
attend.
54. In the circumstances, I am prepared to draw the adverse inference that Mr. Rambharath's
evidence would not have supported the First Defendant's Defence and I am also prepared to
accept the Claimant's evidence that he was instructed by Mr. Rambharath to perform his
duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers
who were erecting the scaffolding at the higher level.
V. Was there unsuitable and/or insufficient and/or unsafe access to and egress from
the place where the Claimant was required to perform his duties?
55. In his witness statement, the Claimant stated that Damion Doolcharan continued to climb to a
higher level while he remained on a pipe at a lower level in order to assist the other workers
in hoisting up the materials from the ground:
"I remember stepping on to the pipe and observing that there was nowhere for me to 'tie
off' in my immediate vicinity. However, I observed that there was a life-line located
approximately 7 ft away along the pipe......The pipe which I was required to walk along
was unpainted and was approximately 10 inches to 12 inches wide. There were other
bigger pipes which I observed overhead and below the pipe was the ground. There was
no cat-walk to walk along, no hand-rails to provide a secure hold and no safety netting
around the pipe to protect me if I fell. I was already wearing my harness and started to
walk along the pipe with the intention of hooking my harness to the lifeline further down
the pipe. I took about four steps in the direction of the lifeline along the pipe when I
slipped."
56. Once again, the witnesses for the First Defendant did not give any evidence to contradict the
Claimant. Desmond Durham did not look up to see what Tarran, Riaz or Ian were doing and
so he could not describe what existed at the level from which the Claimant fell. Tarran Singh
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gave evidence that at the higher level where he was working there was a catwalk about two
feet wide withrailings on both sides as well as a lifeline overhead. The catwalk was made of
steel and had a metal grating and the railings were about 3 feet in height and had a middle
bar. However, he was the first rigger to ascend the stairs and, under cross-examination, he
admitted that although he was in charge of the persons pulling up material, namely Riaz and
Ian, he did not look back for or see the Claimant. He went straight to the top and he thought
the Claimant knew what he had to do. He also admitted that he did not know where the
Claimant was or how he fell.
57. In the circumstances, I am prepared to accept the Claimant's evidence that at the lower level
where he was instructed by Mr. Rambharath to perform the task of hoisting materials from
the ground, there was no catwalk or railings. I also accept the Claimant's evidence that there
was nowhere for him to tie off in the immediate vicinity and that the nearest lifeline was 7
feet away.
58. Accordingly, I find that at the lower level where the Claimant was instructed to perform his
duties, there was unsuitable and/or insufficient and/or unsafe access thereto and egress
therefrom.
VI. Did Mr. Rambharath require the Claimant to walk across a hazardous
and/or slippery pipe for several feet without his harness being attached in order
to perform his duties?
59. Under cross-examination, the Claimant denied that he was in breach of proper procedure and
he did not agree that he was the sole cause of his fall. However, he admitted that the workers
were told by Mr. Rambharath at the tool-box meeting to maintain 100% tie off at all times.
This was confirmed by both Mr. Durham and Mr. Singh who explained that this meant that at
least one of the two safety straps must be hooked on to an anchorage point at all times.
60. I have already found that Mr. Rambharath instructed the Claimant to work at the lower level
and that at that level there was no catwalk or railings or overhead lifeline in the immediate
vicinity.
61. In light of these findings, therefore, I also find that Mr. Rambharath required the Claimant to
walk across a hazardous and/or slippery pipe for several feet without his harness being
attached in order to perform his duties.
Page 17 of 60
VII. Did the First Defendant provide to the Claimant adequate health and safety
training and/or orientation in accordance with accepted industrial standards
before commencing work?
62. In his witness statement, the Claimant said he started work with the First Defendant in or
about January 2003. He did not receive any formal training in respect of safety procedure but
gained experience on the job. He also said that he did not recall attending any safety
orientation from the First Defendant nor did he sign any document to say that he had
completed a safety orientation. He also did not recall receiving a safety pass. Further, he said
that at other jobs he had observed the presence of safety officers who were specifically
assigned the responsibility of ensuring that workers on the job site were safe and performed
their duties in a safe manner. However, on the day of the accident, he observed no such
procedures in place and he did not observe any safety officers.
63. Under cross-examination, however, the Claimant admitted that by the date of this accident in
October 2005, he was knowledgeable about building scaffolding and that he had spent about
700 hours doing such work at customers' premises. He also knew that he had to wear his
harness to maintain 100% tie off when working over 6 feet. On that date, there was a "tool
box" meeting in which all the employees were reminded about maintaining 100% tie off at all
times. To that extent, therefore, the Claimant contradicted his evidence-in-chief. Further, he
did not specify what other job sites he had worked at where safety passes were issued after
undergoing a safety orientation or where safety officers were assigned the responsibility of
ensuring the safety of the employees and compliance with instructions. In the absence of such
evidence, therefore, I am not satisfied that the Claimant has supported his allegation that
there was an acceptable industry standard with which the First Defendant had failed to
comply.
64. In the absence of such evidence, I am of the view that the Claimant had been provided with
adequate safety training and orientation prior to the date of this accident to enable him to
perform his duties.
Page 18 of 60
VIII. Did the First Defendant fail to provide the Claimant with suitable protective
equipment (including but not limited to non-slip footwear, footwear with
special grips or non-slip covers for his shoes) to protect him from slipping?
65. This issue requires me to determine whether the First Defendant failed to provide the
Claimant with suitable protective equipment (including but not limited to non-slip footwear,
footwear with special grips or non-slip covers for his shoes) to protect him from slipping.
66. The Claimant gave evidence that on the day of the accident he was wearing his helmet,
goggles, gloves, steel-tipped boots and safety harness with two lanyards. However, in
describing how he fell, he did not suggest that the cause of his fall was the unsuitability of the
protective equipment that he was wearing. In particular, he did not say that his footwear in
any manner caused him to fall. The pipe onto which he stepped was unpainted and
approximately 10 to 12 inches wide. As I understand his evidence, the cause of his fall was
the location of a life-line overhead some 7 feet away from where he was standing and his
attempt to step onto the narrow pipe without being tied off. He made about 4 steps in the
direction of the lifeline when he slipped and fell.
67. In my opinion, the Claimant was wearing suitable safety equipment when he fell.
Unfortunately, in his attempt to reach the overhead life-line, he slipped on the pipe and fell
because he was not tied off. In my opinion, therefore, the Claimant has not proved that the
First Defendant failed to provide him with suitable protective equipment to protect him from
falling.
IX. Did the First Defendant fail to implement suitable/sufficient protection
measures to prevent the Claimant from injuring himself from falling, including
the provision of railings and/or safety nets?
68. I have already found that the Claimant had been instructed by Mr. Rambharath to perform his
duties of hoisting material at a lower level than 50 feet and that at that level there was no
catwalk or railings or overhead lifeline in the immediate vicinity. It is also not in dispute that
there was no safety net in use at the site.
69. Section 21(2) of the Factories Ordinance imposes upon an employer an obligation, where any
person is to work to at a place from which he will be liable to fall a distance of more than 10
feet, to provide means, so far as is necessary and practicable, by fencing or otherwise for
Page 19 of 60
ensuring his safety. It is clear that the Claimant was instructed to work at a height well over
10 feet and there was no fencing in place at that level. The only safety measure in place was
that the workers were wearing harnesses which they were expected to fasten onto an
overhead life-line in order to maintain 100% tie-off at all times. In the event that a worker
slipped while performing his duties, he would be suspended in mid-air and not fall to the
ground. However, at the level where the Claimant was instructed to work, the lifeline was
located some 7 feet away from where the Claimant was standing after he came off the
stairway.
70. In my opinion, the means provided to the Claimant were insufficient to ensure his safety
since in order to reach the life-line, he was required to step onto the narrow pipe without
having anything to hold onto while executing this manoeuvre. In so doing, he was exposed to
the risk of slipping while walking along the narrow pipe and of falling to the ground before
he had succeeded in fastening his harness to the lifeline. It should also be borne in mind that
the First Defendant's system of work did not provide for the placement of a safety net below
the area where the workers were performing their job of erecting the scaffolding and the First
Defendant did not adduce any evidence to show why safety nets were not suitable or
reasonable.
71. In the circumstances, I find that the First Defendant failed to implement suitable or sufficient
protection measures to prevent the Claimant from injuring himself from falling.
X. Did the First Defendant fail to carry out a suitable risks assessment?
72. The First Defendant’s witness, Mr. Tarran Singh gave the following evidence with regard to
the assessment of the risks in respect of the scaffolding job at the Second Defendant’s
premises:
"The foreman and I went up on first day. We decided together how it was to be done.
We had to locate position that was safe for guys to sit down or stand up to take material
on top. Groundsman would be on ground and would send up material. We had to
decide where persons had to be to get material to pass to us. Riaz and Ian were to be
rope men..... We had toolbox meeting on Friday. On Friday we were told to follow what
foreman said to do. At mtg, I was told we had to go to top....... Shane and I went up and
determined what had to be done. Durham was supposed to be on ground.....We don’t
Page 20 of 60
walk on any pipe. We put planks to walk on. We don’t put up netting to secure that
person cannot fall off. At that time we did not use netting. When we were constructing
scaffolding, there was nothing below to catch person. The only thing to protect them
was lanyard and harness. If something happens at some point, you would go down."
73. Further, Mr. Archie gave evidence in general terms of the First Defendant’s health and safety
policies to minimize injuries. He also annexed a Report signed by the Marketing Manager,
Mr. Devan Sookraj but apart from the reference to the tool box meeting, there is no reference
therein to a risk assessment conducted by the First Defendant.
74. In my opinion, although Mr. Singh refers to a visit by the foreman, Mr. Rambharath and
himself on the day prior to the incident to evaluate and determine how the job was to be
performed and what duties would be assigned to the workers, his evidence does not refer
specifically to an assessment of the risks to which the workers would be exposed in
discharging their functions.
75. Accordingly, in the light of my earlier finding that the First Defendant failed to implement
suitable/sufficient protection measures to prevent the Claimant from injuring himself from
falling, I am of the opinion that the First Defendant failed to carry out a suitable risks
assessment in relation to the execution of this scaffolding job on 8th
October 2005.
XI. Were the passageways and gangways which the Claimant was required to use of
unsound construction and/or not properly maintained?
76. The Claimant did not give any evidence to prove that the passageways and gangways which
he was required to use were of unsound construction and/or not properly maintained. In any
event, I have already found that the Claimant was instructed to work at a lower level where
there was no catwalk or railings in place.
77. Accordingly, I decline to make any finding that the passageways and gangways which the
Claimant was required to use were of unsound construction or improperly maintained.
Page 21 of 60
XII. Was there an absence of fencing or other means to ensure the Claimant's safety?
78. The undisputed evidence is that at the level of the job site there was a gangway 2 feet wide
with 3 feet railings on either side. However, the evidence is also clear that at the lower level
from which the Claimant fell, there were no such railings.
79. In the circumstances, I find that there was an absence of fencing or other means to ensure the
Claimant's safety at the level where he was required to perform his duties.
XIII. Did the First Defendant fail to provide adequate supervision?
80. In considering this issue, I am of the view that I need to consider and determine whether the
First Defendant failed in its common law duty to provide to the Claimant proper and/or
adequate supervision and/or assistance and/or supervision and/or as stipulated in the Second
Defendant's Safety Handbook during the performance of his duties?
81. The Claimant did not give any evidence of safety requirements/ procedures or any
stipulations as to supervision contained in the Second Defendant's Safety Handbook dated 2nd
April 2005. Accordingly, I find that the Claimant has not proved that the First Defendant
failed to acquaint/and/or orient him with the requirements/ procedures or stipulations as to
supervision set out therein.
82. However, when I consider the evidence of the Claimant, Mr. Durham and Mr. Singh and, in
the absence of any evidence from Mr. Rambharath, I am of the opinion that the First
Defendant did not provide proper and/or adequate supervision of the Claimant. Mr. Durham
was instructed to cordon off the area with tape but he did not have any supervisory
responsibility towards the Claimant. However, both Mr. Rambharath, as the foreman, and
Mr. Singh, as the most senior rigger, should have ensured that there was proper supervision
of the employees. This is especially so because the Claimant had been instructed to carry the
task of hoisting the material from the ground at a lower level where there was no railing or
fencing and no overhead lifeline in the immediate vicinity and, most importantly, no safety
net in place below the workers. Mr. Singh gave evidence that he proceeded up the stairs but
he assumed that the Claimant was doing what he was instructed to do and so he never looked
back. Mr. Rambharath did not attend to give evidence as to the measures he took to ensure
that the Claimant could safely carry out his instructions at the lower level. I am of the opinion
Page 22 of 60
that if proper supervision had been exercised, the risk or danger of the Claimant stepping
onto a pipe without his lanyard attached may have been observed and instructions could have
been given to him to avert the risk of him slipping on the pipe and falling to the ground.
83. Accordingly, I find that the First Defendant failed to provide to the Claimant proper and/or
adequate supervision to ensure that he did not expose himself to the risk of slipping and
falling.
Conclusion
84. In the light of my earlier findings of fact on this issue, I find that although the First Defendant
held a safety orientation meeting before the commencement of scaffolding construction on 8th
October 2005 at which the First Defendant's employees, including the Claimant, were
instructed to maintain 100% tie off at all times, the Claimant was instructed to perform his
duties at a lower level than 50 feet in order to pass up the scaffolding to the other workers
who were erecting the scaffolding at the higher level. At that level, there was no railing or
fencing or lifeline in the immediate vicinity onto which the Claimant could fasten his harness.
In order to reach the overhead lifeline which was some 7 feet away, the Claimant was
required to walk across a narrow pipe for several feet without anything to hold onto. As a
consequence, the Claimant was exposed to the risk of slipping and falling to the ground
before he had succeeded in fastening his harness to the lifeline since there was no safety net
in place below him to avoid such an eventuality. In my opinion, therefore, the First
Defendant was in breach of its statutory obligations under Section 21 of the Factories
Ordinance by failing to provide and maintain a safe means of access to the place where the
Claimant was required to work and by failing to provide fencing or other means to ensure the
safety of the Claimant. Further, the First Defendant was negligent in failing to provide and
operate a safe system of work which would have prevented the Claimant from slipping and
falling and injuring himself.
Page 23 of 60
Contributory negligence
85. The First Defendant pleaded and sought to argue that the Claimant's negligence contributed
to his fall and his injuries.
86. As earlier stated, the burden lies upon the First Defendant to prove firstly that the Claimant
failed to take such care of himself as an ordinary man would take for his own safety and
secondly, that his failure to take care was a contributory cause of his slip and fall. It is not for
the Claimant to disprove that he was contributorily negligent.
87. In my opinion, the First Defendant failed to discharge this burden since its witnesses were
unable to give any evidence as to the cause of the fall. Neither Mr. Durham nor Mr. Singh
saw where the Claimant was or how he fell. Further, the First Defendant failed to call Mr.
Devan Sookraj to give evidence with respect to the investigation into the incident which he
conducted and the Report which he prepared. Instead, his Report was annexed to the witness
statement of Mr. Archie and it does not support the allegation that the Claimant failed to use
reasonable care for his safety and that he caused or contributed to his slip and fall.
88. Therefore, the First Defendant failed to prove that the Claimant was contributorily negligent.
Accordingly, I find that the Claimant's fall and consequential injuries were not caused or
contributed to by his negligence and I find that the First Defendant is wholly liable in
damages to the Claimant for breach of statutory duty under the Factories Ordinance and in
negligence.
Damages
Special damages
89. Annexed to the Claimant’s Re-Re-Amended Statement of Case is a schedule of Special
Damages with claims under the following heads; Professional Services, Travelling,
Medication, Nursing Care, Equipment, Medical Reports and Loss of Earnings, each of which
will be examined individually.
Professional Services
90. The Claimant has claimed for three visits to Doctors totalling $865.00. He provided receipts
that were stamped and signed by the Doctors for each visit. Two of the receipts were from
Dr. Krishna Maharaj, dated 12th
July 2006 and 17th
January 2007 for professional services
Page 24 of 60
rendered, totalling $350.00. The third receipt was from ‘Doctor’ Lionel Gaskin of the Soul
Mind and Body Institute, for medical consultation, in the amount of $515.00. Judy Gonzales
gave evidence that the Claimant visited the Soul Mind and Body Renewal Institute on three
occasions in or about April 2007 to obtain treatment options for his seizures. However,
neither the Claimant nor Judy Gonzales provided the Court with any information as to the
qualifications or experience of 'Doctor' Gaskin.
91. The Claimant had his first seizure in January 2006 and had been prescribed Tegretol by the
doctors at the San Fernando General Hospital from inception. After consulting Dr. Krishna
Maharaj, the Claimant was advised to continue taking Tegretol, which he continues to take to
date and which he now receives free of charge from the Chronic Disease Assistance Plan of
the Ministry of Health (C-DAP).
92. In the circumstance, I am prepared to permit the Claimant to recover the medical fees paid to
Dr. Maharaj but not the sum claimed for the consultation with ‘Doctor’ Gaskin. Therefore, I
will make an award in the amount of $350.00.
Travelling
93. Mr. Gonzales is seeking to recover the expenses he incurred in travelling to various Hospitals
and Doctors’ Offices. He did not provide any written receipts to prove the same but there was
agreement between the parties for payment of the amount of $528.00. Accordingly, I will
award the sum of $528.00 for travelling.
Equipment
94. The parties agreed to the sum of $465.00, the cost of crutches purchased by Mr. Gonzales and
therefore, I will make an award in that amount.
Medical Reports
95. The parties agreed to the sum of $75.00 and $1,875.00, the cost to obtain medical reports.
Therefore, I will make an award in the amount of $1,950.00.
96. In addition, the Claimant obtained a Medical Report from Doctor Mulrain on June 3rd
2013 at
a cost of $1,000.00. He provided the Medical Report and the receipt for $1,000.00. This
Page 25 of 60
report provided an up to date medical opinion on the Claimant’s injuries prior to the trial and
to inform the court about the progress of the Claimant’s recovery. I am of the view that it was
reasonable for the Claimant to seek this opinion in order to provide the court with the latest
information on his condition and to incur this expense. Accordingly, I will award the
Claimant the cost of obtaining the medical report in the amount of $1000.00.
Medication
97. The Claimant is seeking to recover the cost of Tegretol and painkillers for the period January
2006 to December 2010 and continuing, totalling $13,440.00 up to December 2010. Annexed
to his Witness Statement were a prescription for Motrin dated 02/02/06 and 2 prescriptions
for Tegretol dated 22/03/06 and 17/01/07. Also annexed were receipts from Handel’s
Pharmacy Ltd. for Tegretol dated 1/04/06 and June 2006 to present, although no present date
was included. The latter receipt indicated that the cost associated with a monthly supply of
Tegretol was $55.00.
98. Guidance on awards of special damages can be found in the decision of Bowen LJ in
Ratcliffe v Evans10
where he stated as follows:
“In all actions accordingly on the case where the damage actually done is the gist of the
action, the character of the acts themselves which produce the damage and the
circumstances under which these acts are done, must regulate the degree of certainty
and particularity with which the damage done ought to be stated and proved. As much
certainty and particularity must be insisted on, both in pleading and proof of damage,
as is reasonable having regard to the circumstances and to the nature of the acts
themselves by which the damage is done. To insist upon less would be to relax old and
intelligible principles; to insist upon more would be the vainest pedantry.”
99. In the case of Gunness and Another v Lalbeharry11
, the Court of Appeal ruled that the
Judge was wrong in finding that the Claimant had failed to prove loss and to disallow a claim
10
(1982) 2 QB 524
Page 26 of 60
in special damages relating to loss of items of jewellery, handbag, cosmetics and $25.00 cash.
Braithwaite JA stated that:
“there is no evidence to contradict the evidence of the appellant nor had she been
shown not to be a credible witness. There is therefore no justification for the judge’s
finding in this respect. The fact that her evidence is unsupported is clearly not sufficient
to deny her claim for a loss which must be taken, in the absence of evidence to the
contrary, in the circumstances of her loss of consciousness to be at least strong prima
facie evidence of the fact which she alleged”.
100. This approach was endorsed by the Court of Appeal in Great Northern Insurance Company
Limited v Johnson Ansola12
. Mendonca JA in delivering the judgement of the Court stated at
paragraph 97 as follows:
“...it seems clear that the absence of evidence to support a plaintiff’s viva voce evidence
of special damage is not necessarily conclusive against him. While the absence of
supporting evidence is a factor to be considered by the trial Judge, he can support the
plaintiff’s claim on the basis of viva voce evidence only. This is particularly so where
the evidence is unchallenged and which, but for supporting evidence, the Judge was
prepared to accept. Indeed in such cases, the Court should be slow to reject the
unchallenged evidence simply and only on the basis of the absence of supporting
evidence. There should be some other cogent reason.”
101. Adopting a similar approach, I am of the view that the Claimant's inability to produce all
the receipts for the medication he purchased is not unreasonable. There being no evidence
to contradict the unchallenged evidence of the Claimant, there exists a prima facie case that
the Claimant did expend monies to purchase this medication as prescribed by his medical
doctors. However, consideration must be given to the fact that in his Re-Re-Amended
Statement of Case, the Claimant sought to recover $20.00 per week for Tegretol, which
totals $80.00 per month which is at variance with the receipt which indicates that Tegretol
costs $55.00 per month. Further, at paragraph 20.3 of the Claimant’s principal witness
11
Civ App 41 of 1980 12
Civ App 169 of 2008
Page 27 of 60
statement, he stated that in February 2012, he visited the Chaguanas Health Facility for
treatment for his seizures and was prescribed Carbamazepine, the equivalent of Tegretol,
which is available from C-DAP. By his supplemental witness statement, the Claimant
stated that he now attends Eric Williams Medical Sciences Complex Neurosurgical Out
Patient Clinic where the doctors prescribe Tegretol to prevent the seizures. He annexed a
prescription form which indicates that he continues to receive the prescribed Tegretol each
month free of charge. Therefore, I will allow the cost of $55.00 per month for Tegretol
from January 2006 to January 2012 amounting to $3,960.00 and $200.00 per month for
pain killers from January 2006 to July 2014 amounting to $20,400.00. The total award for
the cost of medication will therefore be $24,360.00.
Nursing Care
102. The Claimant sought to recover $1,800.00 for nursing care provided by his mother, Judy
Gonzales. This figure is based on loss of earnings for 4 months at a rate of $450.00 per month
for the period October 2005 to January 2006. Mrs. Gonzales gave evidence that when the
Claimant was discharged from the hospital he was in a lot of pain and remained in bed most
of the time and needed help to do everything. As such, she stayed at home from her job with
the Unemployment Relief Programme (URP) and took care of him. However, the evidence as
offered by the Claimant’s mother in her witness statement suggests that she earned $450.00
per fortnight which is at variance with the pleading for the cost of nursing care. Further, in
cross examination, Mrs. Gonzales admitted that she failed to produce any payslips, cheque
stubs, job letter, bank statements or bring anyone from the URP to give evidence to prove
that she was in fact employed there.
103. Despite these obvious weaknesses in the evidence, I have considered the decision of
Cunningham v Harrison13
. In this case the court noted that it is right and just that if a wife
renders services to an injured party instead of a nurse, the injured party should recover
compensation for the value of the services that his wife has rendered, even though she has not
given up paid work to look after him and has only performed domestic duties in the house.
13
[1973] 1 QB 742
Page 28 of 60
104. Therefore, although the oral evidence of Judy Gonzales was unsupported by documentary
evidence to prove her employment in the URP, I am of the view that the services rendered by
her to the Claimant clearly calls for compensation. I note however that the accident occurred
on 8th
October 2005 and the Claimant was discharged on 14th
November 2005. Therefore, I
am of the opinion that a reasonable award for the nursing services rendered by Mrs. Gonzales
to the Claimant would be $1,350.00 for the period November 2005 to January 2006.
Loss of Earnings
105. The Claimant sought to recover loss of earnings at the rate of $572.77 per week, representing
his net weekly income as a Rigger, from 1st February 2007. At the time of the accident, the
Claimant earned $9.00 per hour when he worked at the First Defendant’s premises and
$15.00 per hour when he worked off-site, building scaffolding at customers’ premises. This
was confirmed by payslips submitted by both the Claimant and Mr. Archie, which showed
that he would take home $572.77 per week if he worked eight hours each day off site for the
entire week. The payslips provided by the Claimant showed that he was paid at the offsite
rate immediately after the accident until March 2006. No pay slips were provided for April
and May 2006 although the Claimant did not allege that he was not paid and he did not make
any claim for the amount. It should be noted, however, that the Claimant gave evidence that
in April 2006 he obtained temporary employment at Dennie’s Hardware.
106. In his evidence, Mr. Archie explained that the Claimant received workmen’s compensation in
the amount of $13,403.28 and he provided receipts signed by the Claimant for receiving
several payments between the period November 2005 to March 2006. Although the Claimant
confirmed at paragraph 22.5 of his principal witness statement that he received the sum of
$13,403.28 in workmen’s compensation, the receipts provided by the First Defendant total
$13,316.73.
107. In any event, the Claimant returned to work at the First Defendant’s premises in June 2006 and
was assigned the task of driving the forklift and was paid at the basic rate of $9.00 per hour.
In his witness statement, the Claimant alleged that he only worked for about 33 hours
because he suffered headaches and seizures that prevented him from working. However,
Page 29 of 60
annexed to his witness statement were payslips for several days work during the period July
2006 to January 2007 at a rate of $9.00 per hour. Mr. Archie confirmed that the Claimant
returned to work in June 2006 and produced a ‘fit to work’ certificate whereupon he was
employed as a labourer and was assigned light duties. Mr. Archie stated that the Claimant
worked until 11th
February 2007 during which time no complaints were made by the
Claimant of any difficulty in completing the tasks assigned. He also provided several payslips
which confirmed that the Claimant was employed by the First Defendant from June 2006 to
February 2007.
108. It is the Claimant’s evidence that having suffered another seizure on 13th
January 2007, his
father submitted a sick leave on his behalf on 17th
January 2007 to the First Defendant. The
sick leave certificate was not annexed to his witness statement and as such, the court is
unaware of the period of time for which he was on approved sick leave. The court notes that
the last payslip provided by the Claimant is for the period January 2nd
2007 to January 5th
2007. This gave the court the impression that after the seizure the Claimant was unable to
return to work for an entire month. However, the First Defendant provided payslips for the
period January 8th
to January 12th
, January 22nd
to January 26th
, January 29th
to February 1st
and February 5th
to February 8th
, all in the year 2007.
109. Further, the Claimant alleged that upon his return to work at the First Defendant’s premises
on 14th
February 2007, Mr. Archie said to him, “You still working here.” In response, the
Claimant asked Mr. Archie what he meant by his comment but Mr. Archie did not reply.
According to the Claimant, he felt humiliated by Mr. Archie's remark and, therefore, he did
not return to work at the First Defendant’s premises. In Mr. Archie’s supplemental witness
statement, he denied seeing the Claimant on that day or uttering such words to him.
110. In cross-examination, Counsel for the Claimant questioned Mr. Archie on this issue. She
asked “Now when he left the job, according to you, you never saw him on that day, you recall
who you see on a day on a job site? You have so many workers what made you recall this
specific day that you didn’t see him on that day?” Mr. Archie’s responded “Well I am sure I
never spoke to him about anything like that, because I would have remembered.” Based on
Page 30 of 60
this evidence, on a balance of probabilities, I am prepared to accept the Claimant's evidence
that Mr. Archie made the remark to him on the day that he returned to work. However, I am
not satisfied that the Claimant's decision to leave his employment with the First Defendant as
a consequence of that remark was appropriate, rational or reasonable. A more appropriate,
rational and reasonable response would have been for the Claimant to raise his concerns with
the Management of the First Defendant and to seek an amicable resolution of his complaint.
111. According to the Claimant, after the incident with Mr. Archie, the next time he was able to
secure temporary employment was at Dennie’s Hardware in April 2008 and July 2008.
However, he did not give any evidence concerning his attempts to secure employment
between 14th
February 2007, when he left the job, and April 2008.
112. The Claimant then stated that after his stint at Dennie's Hardware, he secured employment in
2011 at Chemplast (Caribbean) Limited, packing boxes and material for which he was paid
$15.00 per hour. At the date of signing his principal witness statement, 4th
June 2012, the
Claimant was still employed at Chemplast. However, he alleges that in August 2012, he had a
quarrel with another worker and left the compound. When he returned the following day, he
was informed that his services were terminated. The Claimant’s evidence is that since then all
attempts to obtain employment have proven futile. However, he did not give details of any
specific attempts he made to secure alternative employment.
113. When relief is sought for loss of earnings, a Claimant must provide documentary evidence to
prove what is claimed. This was reaffirmed by the Court of Appeal in the decision of Dennis
Peters Edwards v Namalco Construction Services Limited and Guardian General
Insurance Company Limited14
where it was highlighted that “In order to prove his loss in
respect of pre trial loss of earnings the appellant had to show that the injury had rendered
him incapable of performing any work from the date of his injury to the date of
trial.”(emphasis mine) It is clear, however, that this is not a case in which the Claimant’s
injury is such that it rendered him incapable of performing any work. The evidence of the
Claimant himself has shown that he is capable of performing some work and the medical
14
C.A. No. 28 of 2011
Page 31 of 60
report of Dr. Maharaj dated 23rd
February 2011 indicated that he should be able to do simple
manual work.
114. The Claimant is seeking to recover loss of earnings from February 2007. Mr. Gonzales’ last
day of work at the First Defendant’s company was 8th
February 2007. He obtained
employment at Dennie’s in April 2008 and July 2008. He was also employed at Chemplast
from November/ December 2011 to August 2012.
115. In the Privy Council decision of Terrance Calix v The Attorney General of Trinidad and
Tobago Privy Council Appeal No 0003 of 2012 reference was made to the judgment in
Geest plc v Lansiquot (St Lucia)15
:
“It should however be clearly understood that if a defendant intends to contend that a
plaintiff has failed to act reasonably to mitigate his or her damage, notice of such
contention should be clearly given to the plaintiff long enough before the hearing to
enable the plaintiff to prepare to meet it. If there are no pleadings, notice should be
given by letter.”
116. The First Defendant, in its Re-Re-Amended Defence, pleaded that the Claimant failed to
mitigate his losses. It must be pointed out that it is for the Defendant to show that any steps
taken by way of purported mitigation were unreasonable and not for the Claimant to prove
that the steps taken were reasonable: Geest plc v Lansiquot (St Lucia). If the Defendant
fails to show that the Claimant ought reasonably to have taken certain mitigating steps, then
the normal measure will apply. Pill LJ in Froggatt v LEP International Limited16
stated as
follows:
“Where in circumstances such as the present defendants are seeking to show
unreasonableness in the claimant, it is customary to produce evidence, in one way or
another, as to alternative employments which are open to him and for which he could
have applied. There is a conspicuous lack of any such evidence in this case and in his
judgment the judge, understandably in that event, makes no reference to the types of
15
[2002] UKPC 48; [2002] 1 WLR 3111, para 16 16
[2002] EWCA Civ 600
Page 32 of 60
work which would have been open to the claimant, or to his prospects in the Manchester
area of obtaining such lighter work. There is no suggestion that the claimant had any
technical or clerical skills which would have made him readily suitable for sedentary
work of that kind.”
117. In my opinion, the burden placed on the First Defendant to prove that the steps taken by the
Claimant to seek alternative employment were unreasonable is premised on the Claimant
leading evidence that he took some steps to find alternative employment. In this case, the
Claimant has failed to give any evidence of attempts to find alternative employment between
February 2007 and April 2008 and thereafter between July 2008 and 2011, before he secured
the job at Chemplast. It is accepted that the Claimant is no longer suited for work as a Rigger
but Dr. Maharaj has indicated that he may be suited for light manual work. The Claimant
stated that he worked in April and July 2008 at Dennie’s Hardware but he did not indicate the
reasons he worked there for such a short period of time nor he did not provide any causative
link between the injuries he sustained in the accident and his employment for such a short
period of time.
118. In any event, having regard to the Claimant's limited qualifications and now limited work
scope, I am of the opinion that had he made reasonable efforts to find alternative
employment, he would have probably earned no higher than minimum wage. Had he
continued working at the First Defendant as a Rigger, he would have earned a minimum of
$15.00 per hour when he worked off site. Although it is clear from the cross-examination of
Mr. Archie that the rate of pay for Riggers increased over time, the court has not been
provided with any documents or figures detailing the increase each year. In cross-
examination, Mr. Archie indicated that at the date of the trial, Riggers earned approximately
$35.00-$40.00 per hour. However, the court cannot embark on a speculative estimation of the
hourly pay that the Claimant would have received as a Rigger over the period 2007 to 2014.
In addition, the court notes that by the Claimant’s pleaded case he sought to recover the sum
of $572.77 per week (net), calculated at a rate of $15.00 per hour.
Page 33 of 60
119. As alluded to earlier, the Claimant’s obvious ability to earn cannot be ignored. This court is
of the opinion that had serious efforts been made to secure alternative employment, the
Claimant would have secured a job paying at least minimum wage, despite his injury. This is
despite Mr. Archie’s evidence that he would no longer be willing to hire the Claimant even as
a groundsman with his complications. It remains a fact that the Claimant did not provide the
court with any evidence as to the efforts he made to secure alternative employment. Doing
the best I can in the circumstances, I am prepared to award the Claimant the sum of
$81,704.00 representing the difference between what he would have earned had he continued
working as a Rigger during the period 1st February 2007 to July 2014 at a rate of $15.00 per
hour (7 years and 6 months/ 384 weeks at a net rate of $572.77 per week =$219,943.68) and
the amount he would have earned had he obtained a minimum wage job from February 2007
to trial(7 years and 6 months/ 384 weeks at a rate of $360.00 per week ($9.00 per hour for 8
hours per day for 5 days a week) =$138,240.00).
General Damages
120. In determining the general damages to be awarded to the Claimant, I am guided by the
principles set out in Cornilliac v St. Louis17
, as follows:
a) the nature and extent of the injuries sustained;
b) the nature and gravity of the resulting physical disability;
c) pain and suffering;
d) loss of amenities;
e) the extent to which pecuniary prospects were affected.
Nature and extent of the injury sustained and resulting physical disability
17
(1966) 7 W.I.R. 491
Page 34 of 60
121. After the accident on 8th
October 2005 the Claimant was taken to the Accident and
Emergency Department of the San Fernando General Hospital. The Casualty Doctor who
treated him recorded the following injuries:
1) Left inferior pubic rami.
2) Right mid shaft femur.
3) Multiple soft tissue injury.
4) Cerebral concussion.
5) Cerebral contusion.
122. While warded at San Fernando General Hospital, the Claimant underwent surgery to align the
bones in his right thigh and a K-nail was inserted into his thigh. After spending
approximately 5 weeks at the San Fernando General Hospital, Mr. Gonzales was discharged
on 14th
November 2005. Even after he was discharged, he was unable to walk and remained
in bed most of the time. To receive follow up treatment, Mr. Gonzales attended the
Orthopaedic Clinic, the Physiotherapy Clinic and the Neurosurgical Clinic on numerous
occasions.
123. Attached to his witness statement was a medical report dated 24th
April 2007 signed by Dr. Obi
Chizoba of the San Fernando General Hospital. This report confirmed the neurosurgical
diagnosis of the Claimant as extracted from his medical records. It stated as follows:
“On examination he had depressed consciousness with Glasgow Coma Score of 10/15,
right supra orbital laceration with peri orbital swelling, scrotal haematoma and right
thigh deformity and swelling.
X-ray of the pelvis, right thigh showed fracture of femur and pubis femoral. CT scan of
the Brain showed multiple cerebral contusions. Diagnosis of multiple cerebral
concussions was made in a patient with pelvic a femoral fracture and scrotal
haematoma.
He was admitted for close neurological observation and was managed conservatively
with anticonvulsants, antibiotics, analgesics and other supportive care. His recovery
from the neurosurgical problems was uneventful and he was discharged to
neurosurgical clinic on 21st October 2005....”
Page 35 of 60
124. A Report signed by Dr. Sieunarine dated 15th
November 2007 was attached to Mr. Gonzales’
witness statement. This report confirms that the Claimant was seen in the Orthopaedic
Department and the medical records confirmed that the Claimant experienced pain, swelling
and deformity of the right thigh. X-rays revealed a fracture of the left inferior ramus in the
pelvis and a fracture of the mid shaft of the right femur. The report stated as follows:
“A Steinman’s pin was inserted into the Claimant’s right Tibia and he was admitted to
the Orthopaedic Ward for fifteen pounds of skeletal traction of the right lower limb”.
125. Dr. Sieunarine also stated in his report that on 8th
November 2005, the Claimant had surgery
and had open reduction and K-nailing of the right femoral fracture. He was discharged from
the Ward on 14th
November 2005 and remained non-weight bearing on the right lower limb
using crutches for approximately 3 months. He received follow-up treatment in the
Orthopaedic Out Patient Clinic. On 15th
November 2007, the Claimant complained of
intermittent pain in the right thigh and was full weight bearing with a mild limp.
126. Also attached to the Claimant’s witness statement was a medical report dated 15th
November
2007, confirming the orthopaedic injuries suffered by the Claimant. For the first time, in or
around January 2006, the Claimant experienced a seizure and was taken to the San Fernando
General Hospital where he was advised to take Tegretol 200mg. He visited Dr. Maharaj on
6th
January 2006 to obtain a second opinion. Dr. Maharaj prescribed the use of Tegretol
100mg three times daily. Mr. Gonzales suffered another seizure around the first week of
March 2006 and again visited Dr. Maharaj. During this visit, the Claimant’s mother informed
Dr. Maharaj that since the accident the Claimant would get vex easily and would quarrel with
his brothers and sisters. Despite the use of Tegretol, Mr. Gonzales continued to experience
headaches, seizures, blurred vision when exposed to bright sunlight and he also had trouble
remembering. Attached to the Claimant’s witness statement was a report signed by Dr.
Joseph Ramdhanie confirming that the Claimant was seen on 28th
February 2012 at the
Chaguanas Health Facility for a seizure and superficial lacerations to his left upper lip as a
result of falling during the seizure.
Page 36 of 60
127. The complaints made by Mr. Gonzales and his mother to Dr. Maharaj were recorded by Dr.
Maharaj and included in his medical report dated 23rd
February 2011. On 6th
January 2006
Mr. Gonzales complained about headaches and a single episode of loss of consciousness.
However, upon examination, Dr. Maharaj diagnosed grand mal seizure but noted that there
was no abnormal neurology. He referred the Claimant for a CT scan, the results of which
were normal. The Claimant suffered one seizure before his next visit to Dr. Maharaj on 8th
March 2006. On 28th
June 2006 the Claimant visited Dr. Maharaj and complained of
headaches. On visiting Dr. Maharaj on 17th
January 2007 the Claimant complained about a
seizure he suffered a week before. On 18th
February 2007, Dr. Maharaj examined Mr.
Gonzales and in the medical report dated 23rd
February 2011, he summarised his findings as
follows:
On interviewing on 18th
February, 2011 he said he suffered a seizure on September
2010 and another on December 2010. There is no history of seizures before 8th
October
2005. No family history of seizures…His complaints on 18th
February 2011 were:
Headaches - which occurs three times a week and lasts for the whole day if he does not
take Panadol. He said Panadol relieves the headaches.
Forgetfulness - he said he does not remember what he is told to do for example, when
his mother sends him to the shop he forgets what she sends him to buy.
Blurred Vision - This occurs when he is exposed to bright sunlight.
His mother says he gets vex very quickly and quarrels with his brother and sister and
“when he gets vex he gets fits sometimes.
On examination his speech was normal he understood questions readily and his
responses were appropriate and quick, however, on asking him to subtract serial 7’s
from one hundred his answers were delayed but correct. He was able to recall five
objects shown to him after a period of five minutes. His gait and mono pedal stance
were normal. His cranial nerves were intact. There was no papilloedema. His cranial
vault was intact. He had a full range of cervical, hip and knee movements. His deep
tendon reflexes and plantar responses were normal. There was no muscle group
weakness, wasting or fasciculation. The tone of his muscles was normal….It is my
opinion that this patient suffered the following injuries in the fall on 8th
October 2005.
Page 37 of 60
A closed moderately severe head injury
A laceration to his right eye lid
A fractured right femur.
The Laceration has healed satisfactorily. The right femur has healed satisfactorily
following surgery with no evidence of angulation or shortening. He has full range
movement at the Right knee and his joints. It is unlikely that there will be complications
in the future due to his fractured femur.
The recovery from his closed head injury has not been very good. The seizures he now
suffers most probably is due to brain injury due to his fall on 8th
October 2005. His
“getting vex very easily” is probably personality changes due to secondary brain injury
following his fall of 8th
October 2005.
His forgetfulness is also consistent with post concussion syndrome. His seizures,
headaches, forgetfulness and getting vex will continue indefinitely.
This patient can look after himself and does not need any one to care for him. He should
be able to do simple manual work but should not work on heights, climb, drive a motor
vehicle or work near open machinery.
I estimate his permanent partial disability resulting from his seizures, forgetfulness,
personality change and headaches to be thirty five percent at this point in time. His
condition may deteriorate in the future.
128. The Claimant filed a supplemental witness statement on 4th
June 2013 in which he sought to
update the court on the effects of his injuries since the filing of his principal witness
statement. He explained that he continued to experience headaches and suffered two seizures
in December 2012. During the first seizure he fell to the ground and hit his face causing
injury to his lower lip. During the second seizure, he injured his upper lip and eye and lost his
front tooth, but no claim has been made for replacement of same.
129. A Medical Report of Dr. Mulrain dated 5th
June 2013 was filed on behalf of the Claimant.
Doctor Mulrain examined the Claimant on 3rd
June 2013 and noted that the Claimant’s right
thigh had completely healed and that he was able to walk unaided without a limp. He enjoyed
full range of movement of his hips and knee. It was also noted that the Claimant complained
Page 38 of 60
of pain and discomfort in his thigh aggravated by walking or standing for periods in excess of
15 minutes. The Claimant’s permanent partial disability from the fractured femur was
assessed at 7%.
Pain and suffering and loss of amenities
130. It is certainly not in dispute that the Claimant would have endured immense pain having
fallen approximately 40 feet to the ground. By his principal witness statement, the Claimant
testified that after the accident on 8th
October 2005, he woke up on or around 12th
October
2005 in severe pain in his right groin, right leg and head, whilst restrained to a bed. I note that
the History and Physical Record Report from the San Fernando General Hospital dated 8th
October 2005 at 11:30 am indicated that the Claimant was in pain, struggling but restrained
as Orthopaedic Surgeons tried to immobilise him. However the record also indicated that the
patient was drowsy but responded to calls. The Claimant also stated that his groin was
swollen, the injury to his head was dressed with a bandage and he received stitches over and
under his eye, which felt uncomfortable.
131. The Claimant also stated that during the period he was hospitalised, he could not get up, walk
around, go to the bathroom, bathe or change his clothing. The pain he experienced was such
that he had to remain in the same position on the bed to avoid the pain experienced when
moving. He had difficulty sleeping due to constant pain and discomfort.
132. The Claimant's evidence is that even after the surgery was performed on his thigh, he
experienced terrible pain which painkillers did not relieve. Even after he was discharged from
the hospital, he continued to experience pain and needed help to do everything. At home, it
was uncomfortable for him to sleep and he continuously endured headaches, dizziness,
nausea and vomiting. He was aided in walking by crutches, to which he had to get adjusted.
In January 2006, the Claimant had his first of several seizures, for which he was advised to
take medication by various doctors. Prior to the accident, the Claimant never had seizures.
133. By his supplemental witness statement filed on the morning of the trial, the Claimant
contended that up until the date of the filing of the witness statement, he continued to
Page 39 of 60
experience pain and cramps in his right leg whenever he sits or stands for long periods of
time of about 10 minutes and whenever the weather turns cool. Under further cross-
examination, however, the Claimant admitted that while giving evidence in an air
conditioned court for an extended period of time, he did not complain about cramps or pain
and he did not request permission to go outside to stretch his leg. This is despite him
specifically stating at paragraph 4.2 and 4.3 of his witness statement that:
“the degree of the pain varies. Sometimes the pain is unbearable and I am unable to do
anything. At other times to reduce the pain I try to change my position and stretch out
my muscles or try to walk out the pain or massage the pain away. Sometimes the pains
and cramps ease if I take pain killers such as Panadol to ease the pain….The pain I
experience usually eases when I take Panadol but not completely.”
134. In addition, the Claimant stated in his supplemental witness statement that he continued to
experience headaches after filing his principal witness statement. He also stated that he
continued to have seizures in December 2012 which would cause him to fall to the ground
and, after the seizure, he would experience pain all over his body, especially in the areas
injured or bruised when he fell. He explained that it took approximately three days to recover
from the last seizure, during which time his mother provided him with Panadol to ease the
pain and also rubbed and massaged his skin with “hot/ice rub” to ease the pain in his muscles.
135. The Claimant’s mother gave evidence that since the accident, the Claimant is slower and
cannot jump or run as he did prior to the accident. She also stated that he cannot walk far
distances or remain standing or seated for long periods of time. In addition she stated that her
son could no longer work in bright sunlight and complains about blurred vision
Extent to which pecuniary prospects are affected
136. The Claimant pleaded that by reason of his injuries, he is and will remain handicapped on the
open labour market. The Claimant was born on 10th
February 1985. At the time of the
accident he was 20 years old and at the date of this judgement, he is 29 years old. He claims
to have two CXC passes and at the time of the accident he was employed as a Rigger with the
First Defendant. After the accident on 5th
October 2005 Mr. Gonzales resumed work in June
Page 40 of 60
2006, after a period of approximately eight months. He worked intermittently between June
2006 to January 2007 at the First Defendant’s premises, driving a forklift. In January 2007,
Mr. Gonzales suffered a seizure and submitted a sick leave certificate to his employers. His
evidence is when he returned to work on 14th
February 2007, he was humiliated by Philip
Archie and left the First Defendant’s premises and did not return to work.
137. The Medical Report of Dr. Maharaj outlined that the Claimant can do simple manual work
but should not work on heights, climb, drive a motor vehicle or work near open machinery.
He estimated the Claimant’s permanent partial disability at 35 %.
138. After securing employment at Dennie’s Plumbing and Construction Limited in 2008, the
Claimant was assigned to carry tools and materials as need. However, as a result of
headaches, seizures and exposure to the sun, the Claimant only worked for a short period and
earned approximately $3,135.00. Thereafter, the next time the Claimant was able to secure
employment was at Chemplast (Caribbean) Limited in November/December 2011where he
was assigned the task of packing boxes and other material and was paid $15.00 per hour. He
worked at Chemplast until August 2012 when he had an argument with another employee
and left the compound. In cross-examination, he said he left to avoid the seizure that usually
occurs when he is upset. However, he did not inform anyone or write to his supervisor to
explain why he left. On returning to work the following day, the Claimant’s evidence is that
he was told by his supervisor that he had been terminated. No letter of termination from
Chemplast to the Claimant has been presented to the court to confirm that he was in fact
terminated.
139. By his supplemental witness statement, the Claimant contended that he has been unable to
secure alternative employment despite sending one application to a nail factory for
employment. Although he considered improving his qualifications in safety training or in
other fields, he did not do so because he was concerned that he will not be able to work in an
office environment because he is unable to stand for long periods and he experiences pain
and cramps in his right leg when in air conditioning.
Page 41 of 60
Non pecuniary General Damages
140. The Claimant seeks an award of $450,000.00 for pain and suffering and loss of amenities.
The following cases with similar injuries were reviewed to determine the trend of awards for
injuries similar to that suffered by Mr. Gonzales.
Cases
The Claimant relied on the following cases
141. In Clem Lewis v Trinidad and Tobago Electricity Commission18
, delivered on 3rd
October
2003, there were notable similarities between the injuries suffered by Mr. Lewis and the
Claimant in the present case. Some of the injuries outlined by Stollmeyer J, (as he then was)
included personality change, recreational, social and personal life altered to the detriment of
Mr. Lewis, closed head trauma, though no physical damage to the brain itself brain damages
remains a possibility, injuries to his neck and back, he suffers from a slight limp and
experiences pain, on occasion more severely than others. He also suffers seizures, depression,
becomes frustrated and gets angry, demonstrates aggression and can become violent, lack of
concentration, loss of memory, permanent partial disability of 20% and erectile dysfunction.
In this case, an award of $400,000.00 was made for pain and suffering and loss of amenities.
142. In my opinion, the diagnosis of permanent partial disability was lower than the Claimant's,
although Mr. Lewis suffered more notable injuries than the Claimant including erectile
dysfunction and injuries to his neck and back.
143. In Dexter David v Minister of National Security19
, delivered on 12th
January 2004, an
award of $200,000.00 was made for pain and suffering and loss of amenities to a Claimant
who suffered fracture of the neck and right femur and comminuted fracture of the mid shaft
of the right femur which left him with a one inch shortening of the right leg and limited range
of movement in right knee. This resulted in the Claimant walking with a significant limp and
weakness in both the thigh and hip muscles.
18
HCA. Cv. S587 of 1994 19
HCA 1838 of 2002
Page 42 of 60
144. In my opinion, these injuries were similar to that suffered by the Claimant to his leg although
the resulting effects of these injuries to Mr. David were more severe than that of the Claimant
in this case.
145. In Ian Sieunarine v Docs Engineering Works20
delivered on 24th
May 2005 by Rajnauth-
Lee J. (as she then was), an award of $200,000.00 was made for pain and suffering and loss
of amenities to a Claimant who suffered craniectomy with a hemorrhagic contusion, that is
bruising of the brain and a small post-operative fronto-parietal subdural haematoma. Since
the accident, the plaintiff had headaches, dizziness, and forgetfulness with poor
concentration, personality change, noise intolerance plus blurred vision, slurred speech and
impotence. The plaintiff sustained a depressed skull fracture with underlying haematoma
requiring surgery plus a hemorrhagic cerebral contusion with right sided weakness, dysphasia
and seizures, plus post traumatic syndrome.
146. In my opinion, although the diagnosed injuries suffered by Mr. Sieunarine were different to
those suffered by the Claimant in this case, there were several notable similarities between
the effect of the injuries upon Mr. Sieunarine and upon the Claimant in this case.
147. In Cindy Kanhai v Miguel Mohammed and others21
delivered by Master Paray-Durity (no
date for delivery given on judgment), an award of $250,000.00 was considered reasonable for
pain and suffering and loss of amenities. The Claimant suffered fractures of the tibiae and
fibulae of both legs, shortening of one leg and had to undergo further surgery to correct her
disability which would entail further pain and suffering. As at the date of the accident, the
Claimant was 20 years old and enjoyed horseback riding every week, swimming at the beach,
hanging out with friends and family and dancing. After the accident the Claimant had an
unsightly 19 cm scar on the front of her leg.
148. In my opinion, the injuries sustained by Ms. Kanhai in this case are similar to the Claimant's
leg injury. However, the more severe and longer lasting injuries suffered by the Claimant to
his head were absent in this case.
20
HCA 02387 of 2000 21
CV 2006 – 01087
Page 43 of 60
149. In Elva Dick-Nichols v Jayson Hernandez and Capital Insurance Company Limited22
,
delivered on 27th
June 2008, Pemberton J. awarded $400,000.00 for pain and suffering and
loss of amenities. This sum was considered adequate to compensate a Claimant who
sustained the following injuries: Multiple lacerations and abrasions on the left forehead,
tenderness in the pelvic region, small puncture wounds with swelling and tenderness over the
tibia of the left leg, marked diastasis on the pubic symphysis of the pelvis, a comminuted
fracture of the left tibia, fracture of the 5th
and 6th
ribs bilaterally and fracture of the floor of
the left orbit.
150. In my opinion, similar leg injuries were sustained by the Claimant in this matter but the
injuries to his head were more severe than that sustained by Ms. Dick.
151. In Ramnarine Sam v The High Commissioner of India, Bryan Boodram, New India
Assurance Ltd23
, delivered on 23rd
July 2008, Stollmeyer J. (as he then was) awarded
$275,000.00 for pain and suffering and loss of amenities to the Claimant who suffered the
following injuries: head injury which resulted in a blood clot on the left side of the brain
causing right-sided dysfunction as a consequence of a stroke. The clot was relieved by
surgery (a craniotomy) and the Claimant suffered seizures. The Claimant used a cane to walk
and was unsteady, his speech was slurred. He complained of headaches, (for which he took
Motrin sometimes three daytimes daily), dizziness and memory lapses.
152. In my opinion, the Claimant's injuries and the effects of same can be considered more severe
than that sustained by Mr. Sam.
The First Defendant relied on the following cases:
153. In Harold Mitchell and others v Pandora Antoine and Allan Alexander24
, delivered on 1st
November 2002 an award of $90,000 was made by Best J for general damages. This case can
be distinguished because of the difference in age of the Claimant who was an eight year old
child who suffered injuries to his head, irritability and lacerations of the tempero-perietal
scalp fracture of the left femur, flexion of the left knee was slightly decreased with pain at the
extremes of movements and two centimeter shortening of the left lower limb. The Judge
22
HCA S-1449 of 2004, CV 2006 – 01035 23
CV 2007 – 00206 24
HCA 1406 of 1991
Page 44 of 60
noted that the injured child did not give any evidence and as such there was no evidence as to
the intensity of the pain and suffering.
154. In my opinion, this case is not particularly helpful because the loss of amenities to a child, who
has his entire life ahead of him, will be significantly greater than that of an adult and there
was an absence of evidence as to the pain and suffering endured by the child.
155. In George Cadogan v Godwyn James25
, delivered on 19th
January 2005 by Narine J. (as he
then was), an award of $80,000.00 was made for general damages to a Claimant who was
injured in an accident. The injuries sustained by the Claimant were laceration to his scalp,
neck pain, a fractured leg. After treatment, the Claimant continued to experience headaches,
dizziness, neck pain and pains to his right forehead. He was diagnosed as suffering from
scalp neuralgia, post concussion syndrome and neck strain. The doctor assessed his
permanent partial disability as 30%.
156. In my opinion, these injuries were less severe than those suffered by the Claimant in this
matter.
157. In Indra Williams v Lahochan Matasaran26
delivered by Master Paray-Durity (no date for
delivery given on judgment), an award of $150,000 was made for pain and suffering and loss
of amenities. The Claimant was involved in an accident after which she experienced
unbearable pain to her head, feet and right eye. At the hospital, her legs were placed in casts
which remained on for four months after she was discharged from the hospital. She wore
drips for two weeks, was unable to swallow food and a tube was inserted in her for two
weeks to assist in the passing of urine. She complained that the tube caused discomfort and
being bed ridden for six weeks caused bed sores on her back and buttocks. The Claimant
complained of headaches every day, as well as swelling of feet when she standing for long
periods of time and scars which caused her embarrassment.
25
HCA 1915 of 1997 26
HCA S 353 of 2001
Page 45 of 60
158. In my opinion, these orthopaedic injuries and complaints were similar to those experienced
by the Claimant in this matter. However, the head injuries sustained by the Claimant and the
resulting seizures and headaches can be considered more severe.
159. In my opinion, having regard to my assessment of the Claimant’s evidence and consideration
of the awards in the above mentioned cases, I consider a reasonable award for the Claimant's
pain and suffering and loss of amenities to be $450,000.00.
Pecuniary General Damages
160. As stated in the McGregor on Damages27
, “the function of the pecuniary heads of loss is to
ensure that the claimant recovers, subject to the rules of remoteness and mitigation, full
compensation for the loss that he has suffered”. The general method of assessment is the well
known multiplier/multiplicand method. However, where the circumstances of the case are
such that there is uncertainty in determining the future pattern of earnings had the Claimant
not been injured, the conventional approach is called into question and a lump sum is
awarded.
Future medical expenses
161. By submissions filed on October 8th
2013, the Claimant seeks an award of upward
$150,000.00 for the cost of future medication and treatment.
162. The medical report of Dr. Maharaj dated 23rd
February 2011 stated that the fractured femur
had healed satisfactorily and the Claimant had full range of movement at the right knee and
hip joints and it was unlikely that there would be complications in the future due to the
fractured right femur. He stated, however, that recovery from his closed head injury had not
been very good and that the seizures, headaches, forgetfulness and getting vex easily would
continue indefinitely. He estimated the Claimant's permanent partial disability to be 35% and
stated that this condition may deteriorate in the future.
27
paragraph 35-056 of McGregor on Damages 18th
Edition
Page 46 of 60
163. By his supplemental witness statement filed on 4th
June 2013, the Claimant indicated that he
returned to the Orthopaedic Out Patient Clinic at the San Fernando General Hospital and had
an X ray done. He also averred that he continued to experience varying degrees of pain and
cramps in his right leg when sitting or standing for long periods or when the weather turns
cool. To reduce the pain, the Claimant would use painkillers.
164. With regards to the injuries sustained by the Claimant to his head, by his supplemental
witness statement, the Claimant indicated that he continued to experience headaches and
seizures. He continued to attend the Neurosurgical Out Patient Clinic at the Eric Williams
Medical Sciences Complex and attended as recently as January 2013. His evidence was that
he continued to take Tegretol tablets twice daily to try to prevent the seizures. The Claimant
has not provided any receipts to prove that he actually purchased pain killers and Tegretol.
165. As was brought out in cross-examination, the Claimant can in fact sit for an extended period
of time without pain. I have formed the impression that the Claimant has exaggerated the
severity of the pain he experienced. In fact, I believe that his injuries have been well
managed. However, I am of the opinion that despite his exaggeration, I am satisfied that the
Claimant will incur some future medical expense as a result of the injuries sustained in the
accident. The prognosis of Dr. Maharaj suggested that his seizures, forgetfulness, personality
change and headaches may deteriorate in the future. I am of the view that the severity of the
pain has diminished with time as the Claimant was clearly able to sit in court for an extended
period of time without complaint.
166. The evidence provided by the Claimant and Judy Gonzales clearly shows that he receives
Tegretol or a substitute, Carbamazepine, free of charge under C-DAP and as such I will not
award the amount claimed. Although I have formed the opinion that the Claimant has
exaggerated his pain, his oral evidence that he continues to experience headaches is
supported by the overwhelming medical evidence that he suffered from seizures and will
experience headaches. Therefore I will award the Claimant $50.00 per week for Panadol. I
will adopt a multiplier of 21. This award of $54,600.00 ($50 x 52 weeks x 21) takes into
account the contingencies of life and the fact that a lump sum payment is being made.
Page 47 of 60
Future Loss of earnings
167. By written submission filed on 8th
October 2013, Counsel for the Claimant has submitted that
he is entitled to the sum of $1,638,819.00 for loss of future earnings, calculated at a rate of
$1,500.75 per week for 21 years. By its written submission filed on 30th
July 2013, the First
Defendant has submitted that this court should use an annual multiplicand of $11,700.00 and
a multiplier of 18.
168. At the time of the accident, the Claimant was employed as a Rigger with the First Defendant
Company and earned $9.00 per hour when he worked at the First Defendant’s premises and
$15.00 per hour when he worked off-site at customers’ premises for the First Defendant. No
pay slips provided were provided for the period immediately before the accident to permit the
court to determine a trend of whether the Claimant worked mostly offsite or on site before the
accident. However, the pay slips provided showed that after the accident, the Claimant
received paid sick leave at the offsite rate from October 2005 to March 2006. In cross-
examination, Mr. Phillip Archie the Company Secretary explained that the Claimant was only
entitled to 14 days sick leave and the payments he received up to June 2006 were made as
workmen’s compensation. He also explained the hierarchy of workers at the First Defendant
Company. He stated that a Rigger could be promoted to a Foreman, a Foreman could be
promoted to a Supervisor and a Supervisor could be promoted to become a Manager. He also
made it clear that with time, the Claimant could have been promoted to the position of
Supervisor or Manager.
169. In Seudath Parahoo v S.M Jaleel & Company Limited28
, Hamel-Smith J.A. at paragraph
8 stated as follows:
“It is appropriate at this juncture to consider the onus placed on the appellant to prove
his loss. In order to prove his loss in respect of pre-trial loss of earnings and loss of
pecuniary prospects the appellant had to show respectively (i) that the injury had
28
Cv A No. 110 of 2001
Page 48 of 60
rendered him incapable of performing any work, whether as an electrician or otherwise,
from the date of his injury to the date of trial and (ii) that the injury was of such a
nature that it rendered the appellant incapable of performing his duties as an
electrician or, for that matter, any other form of work whatsoever. If it rendered him
incapable of performing as an electrician but did not prevent him from doing other
work, it was necessary to show that in order to mitigate his loss. In discharging this
onus, 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 imperative.”(emphasis mine)
170. The Medical Report of Dr. Maharaj dated 23rd
February 2011 outlined that the Claimant can
do simple manual work but should not work on heights, climb, drive a motor vehicle or work
near open machinery. Based on this medical report, it is evident that the Claimant will no
longer be able to perform the work of a Rigger as he did before the accident. However, from
the evidence led at trial, the Claimant has shown that he has been able to secure employment,
albeit on a temporary basis. Most certainly, the Claimant cannot contend that his actual
earning power had been completely eroded as a result of the injury because he has not proved
that he has been totally incapacitated. This assessment is therefore based on partial loss of
earnings and a determination of whether a Blamire lump sum award or a
multiplier/multiplicand approach is appropriate in the circumstances.
171. A Blamire award finds its origin in the case of Blamire v South Cumbria Health
Authority29
and was explained by the Honourable Mendonca J.A. in the Court of Appeal
decision of Johnson Ansola v Great Northern Insurance30
as follows:
“The Blamire award gets its name from the case of Blamire v South Cumbria Health
Authority [1993] 2 PIQR Q1. In that case the Court of Appeal of England held that the
Judge was entitled to reject the conventional multiplier/multiplicand approach in favour
of a global broad brush approach given the number of imponderables. To appreciate
the decision of the Court of Appeal, it is appropriate to have an understanding of the
facts of the case.
29
[1993] 2 PIQR 30
CA Civ 169/2008
Page 49 of 60
That case involved a claim by a plaintiff for damages for personal injuries. The plaintiff,
a nurse, injured her back while lifting a patient. The injury had left her back vulnerable
- a condition that she would endure into the foreseeable future - as a consequence of
which she could not continue in a nursing job that involved lifting patients and in all
probability would have to fall back on her second skill which was secretarial work. The
trial judge summarized his views on the issue of future loss of earnings as follows (see
Q4): “I believe from what I have seen of her that, when she does obtain secretarial
work, she will do it efficiently and give satisfaction to her employers. Her personality is
such that I think she would be an asset in any office, and I see her as attractive to
potential employers. But that it is going to be significantly harder for her to get such
work than were she a nurse, I have no doubt. That this is so at the present time is
established; I feel justified in finding that the same would probably be true for the whole
of her working life. In any event it is likely to be harder to find a working environment
which she finds congenial. It is reasonable to expect some recurrence of back trouble
during the rest of the plaintiff’s working life, and if she should lose a job through long
absence with back trouble it may be difficult to get another. I must take account of the
possibility that she might be unable to get any suitable secretarial work and may,
accordingly have to seek part time light nursing work of the kind which she was doing
in the residential home. That, of course, would enable her to earn something but would
leave a substantial shortfall in comparison with her earnings were she still able to be a
full-time nurse.
The trial judge did not apply the multiplier/multiplicand approach but awarded a lump-
sum. On appeal by the plaintiff the Court of Appeal said that there were two issues
facing the trial judge: a) What was the likely pattern of the plaintiff’s future earnings
had she not been injured; and b) What was the likely pattern for the plaintiff’s future
earnings given the fact that she was now injured?
The Court of Appeal said that there were uncertainties in respect of both questions.
Steyn L.J. in his judgment, with which the other Judges were in agreement, stated (at
Q5): “First, there was uncertainty as to what the plaintiff would have earned over the
course of her working life if she had not been injured. It is not necessary to mention all
the difficulties which confronted the plaintiff. One was the possibility that she might
Page 50 of 60
have more children. Another was the fact that she clearly would like to have done part
time work rather than full time work.... The second aspect was the uncertainty as to the
likely future pattern of her earnings, and here the uncertainties were very great.
Bearing in mind that the burden rested throughout on the plaintiff, it is in my judgment
clear that on the materials before him the judge was entitled to conclude that the
multiplicand/multiplier measure was not the correct one to adopt in this case.”
The Blamire case is very different to this one. There is not present in this case anything
of the uncertainties that existed in the Blamire case. The critical question before the
Judge in this case was what was the future earnings of the Plaintiff had he not been
injured. There is no real uncertainty as to the likely future pattern of the Plaintiff’s
earnings. Before the accident he worked as an upholsterer/joiner. This was his only skill
and there could be little doubt that had he not been injured he would have continued in
those trades in the future. In every case there will be the possibility that things may not
remain the same in the future. As Counsel for the owner submitted, there is a possibility
that the Plaintiff’s income may fall and that he may have no work at times or may go
bust or be unemployed. This is so in all cases and the way that the Courts deal with
such possibilities is to make an adjustment in either the multiplier or the multiplicand. I
therefore do not accept Counsel’s submission that this was an appropriate case for a
Blamire award. It was susceptible to the conventional approach which the Judge used.”
172. The circumstances of this case are not such that there are great uncertainties in determining
the Claimant’s future earnings. Before the accident, the Claimant worked as a Rigger for two
years for the First Defendant. As indicated by the company secretary, with time, the Claimant
could have been promoted, attracting a higher salary. Additionally, the Claimant's alternative
employment after the accident is an indication of how much he could have earned. Therefore,
I feel justified in using the conventional multiplicand/multiplier approach.
Multiplicand
173. The First Defendant by its written submission filed on 30th
July 2013, suggested that this
court use a multiplicand of $11,700.00 (average weekly earnings of $243.75). After the cross
examination of Mr. Phillip Archie who averred that at the date of the trial Riggers earn
Page 51 of 60
$35.00 to $45.00 per hour, the Claimant suggested that the multiplicand be calculated using
weekly earnings of $1,500.75 per week.
174. Generally, the multiplicand is determined by using the Claimant’s net earnings for the year.
However in this case it has to be discounted to take into account the fact that the Medical
Report of the agreed medical expert clearly stated that the Claimant should be able to do
simple manual work. The Claimant returned to work in June 2006 but he was assigned the
task of driving the forklift and was paid at the basic rate of $9.00 per hour. He claims to have
only worked for about 33 hours because he suffered headaches and seizures which prevented
him from working. However, from the pay slips presented, it is clear that he worked
intermittently between June 2006 to January 2007 at the First Defendant’s premises. It
appears however that the Claimant’s ability to work must have improved as he secured
employment at Chemplast from 2011 to August 2012, also evidencing his ability to secure
employment. On the morning of the trial, by supplemental witness statement, the Claimant
gave evidence that he has been unemployed since August 2012. However, the only effort he
appears to have made to secure employment after August 2012 was that he submitted an
application for employment to a nail factory.
175. I am of the opinion that from the evidence provided by the Claimant, his efforts to secure
alternative employment were minimal. I agree with the Claimant’s submission that the
starting point for the multiplicand should be $40.00 per hour with a net weekly pay of
$1,500.75. However, the Claimant did not provide evidence to show the efforts he made to
find alternative employment. I am also of the view that the Claimant has exaggerated the
extent of his disability and he is capable of some level of work as suggested by the Medical
Report. Consequently, the multiplicand should be discounted to reflect same. Therefore, in
the calculation of the multiplicand, I am of the view that the Claimant could have obtained at
least minimum wage employment had he made a greater effort to secure employment. His
earnings as a Rigger had he continued to work with the First Defendant, would therefore be
discounted to reflect the fact that the Claimant is capable of performing some work because
his actual earning power has not been completely eroded. His net annual income of
$78,039.00 (net weekly income of $1,500.75 ˟ 52 weeks) would therefore be discounted to
Page 52 of 60
reflect the fact that the Claimant could have earned at least a minimum wage job at a rate of
$12.5031
per hour doing simple manual work. This will amount to an annual net income of
$24,762.40 ($12.50 per hour for 8 hours each day for five days each week for 52 weeks with
deductions of $4.80 per week for health surcharge and $19.00 per week for National
Insurance contributions). I will therefore use a multiplicand $53.276.60 per year.
Multiplier
176. In assessing the loss of earnings, the multiplicand as outlined above is multiplied by the
multiplier which is based on the number of years during which the loss of earning power will
last, discounted for the fact that a lump sum is being awarded instead of periodic payments
over the years as would ordinarily occur. In determining an appropriate multiplier, I have
considered the multipliers used in similar cases and compared the circumstances therein to
that of the Claimant.
177. In Wayne Wills v Unilever Caribbean Limited, the Claimant was described as a “career
manual labourer”. A multiplier of 12 was used for Mr. Wills who was 33 years old at the time
of injury and forty years old at the time of assessment.
178. In Clem Lewis v Trinidad and Tobago Electricity Commission32
, delivered on 3rd
October 2003, Stollmeyer J (as he then was), used a multiplier of 14 for a Claimant who was
37 at the time of assessment, with a retirement age of 60. He stated as follows:
”Taking into account, among other factors, the Plaintiff's present age of 37, a
mandatory retirement age of 60 at the latest, but possibly earlier, the question of
overtime, the probability of promotion, the potential loss of pension benefits, the need to
make some provision for the Plaintiff being unable to improve himself and his earning
capacity, some form of counseling and/or rehabilitation programme which is not
included in the cost of future medication and medical care, and his failure to mitigate I
propose to use a multiplier of 14. I do so although I recognise this to be perhaps higher
31
By the Minimum Wages Order 2010, the minimum wage increased to $12.50 effective January 01st 2011
32 HCA. Cv. S587 of 1994
Page 53 of 60
than the norm given the Plaintiff’s present age, and I do on a different basis for arriving
at the multiplier used in my award for future care. This results in an amount of
$736,838.62, which I round off at $737,000.00 and award.”
179. In Peter Seepersad v Theophilus Persad and Capital Insurance Limited, Privy Council
Appeal33
, delivered on 1st April 2004, the Privy Council adopted a multiplier of 16 for the
Appellant who was 37 years old at the date of the trial.
180. In Ramnarine Sam v The High Commissioner of India, Bryan Boodram, New India
Assurance Ltd34
, delivered on 23rd
July 2008, by Stollmeyer J (as he then was), a multiplier
of 16 was used for a Claimant who was 29 years old at the time of the accident and 31 years
old at the date of the assessment.
181. The First Defendant referred this court to Andre Marchong v Trinidad and Tobago
Electricity Commissions and Galt and Littlepage Limtied35
delivered by Justice Jones on
May 21st 2010. In that case a multiplier of 18 was used for a Claimant who was 27 years old
at the time of the accident and 31 at the date of assessment.
182. The Claimant was born on 10th
February 1985 and was 20 years old at the time of the
accident in 2005. He is presently 29 years old and had he continued working as a Rigger, he
would have been able to work to at least age 65, as admitted by the Company Secretary, Mr.
Archie. Taking these ages into account, together with other factors including the probability
of promotion, I consider a multiplier of 20 to be reasonable, making appropriate allowance
for the contingencies of life. When applied to the multiplicand of $53.276.60, would result in
an award of $1,065,532.00 for future loss of earnings
Loss of earning capacity
33
No 86 of 2002 34
CV 2007 – 00206 35
CV 2008-04045
Page 54 of 60
183. At paragraph 8 of his Re-Re-Amended Statement of Case, it was pleaded that by reason of
his injuries, the Claimant is entitled to the highest award for loss of earning capacity and
reference was made to the case of Bhawan Ramcharitar v the Attorney General of
Trinidad and Tobago36
, in which an award of $200,000.00 was made by Bereaux J. for loss
of earning capacity. Efforts to find a written judgement in this case proved futile.
184. The First Defendant addressed the award of loss of future earnings and loss of earning
capacity under the same heading and submitted that at most the Claimant should be awarded
$210,600.00. (reduced earning capacity would of 40% ($243.75 weekly/$11,700.00 annually
using a multiplier of 18).They also suggest an award of $50,000.00.
185. The Claimant referred the court to the cases of Smith v Manchester, Moeliker v Reyrolle37
and Peter Seepersad v Theophilus Persad and Capital Insurance Limited38
. They
submitted that the Claimant’s medical condition clearly has an effect on his ability to
maintain jobs and referred to the evidence of him leaving his jobs with the First Defendant
and with Chemplast.
186. The First Defendant referred to the case of Dayal Moonsammy v Rolly Ramdhanie and
Capital Insurance Limited39
in which Kangaloo JA set out the evidential burden on an
injured party when claiming loss of earning capacity. Kangaloo JA referred to the locus
classicus decision on this area of Moeliker v Reyrolle & Co. Ltd where Browne LJ stated:
“But what has somehow to be quantified in assessing damages under this head is the
present value of the risk that a plaintiff will, at some future time, suffer financial
damage because of his disadvantage in the labour market. As Orr LJ said in Clarke v
Rotax Aircraft Equipment Ltd ([1975] 3 All ER 794 at 798, [1975] 1 WLR 1570 at
1576):
'It is true, as stated by Scarman LJ in Smith v Manchester Corpn, that the loss of
earning capacity has arisen at the time of and in consequence of the accident, but
36
H.C.A. 4078 of 1996 37
[1977] 1 All ER 9 38
Privy Council Appeal No 86 of 2002 39
CA 62 of 2003
Page 55 of 60
its financial consequences may or may not arise at all or may arise at any future
time.'
Where a plaintiff is in work at the date of the trial, the first question on this head
of damage is: what is the risk that he will, at some time before the end of his
working life, lose that job and be thrown on the labour market? I think the
question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful'
risk (see Davies v Taylor, per Lord Reid ([1972] 3 All ER 836 at 838, [1974]
AC 207 at 212) and Lord Simon of Glaisdale ([1972] 3 All ER 836 at 844,
[1974] AC 207 at 220)). Scarman LJ in Smith v Manchester Corp. referred to a
'real' risk, which I think is the same test. In deciding this question all sorts of
factors will have to be taken into account, varying almost infinitely with the
facts of particular cases. For example, the nature and prospects of the
employers' business; the plaintiff's age and qualifications; his length of service;
his remaining length of working life; the nature of his disabilities; and any
undertaking or statement of intention by his employers as to his future
employment. If the court comes to the conclusion that there is no 'substantial' or
'real' risk of the plaintiff's losing his present job in the rest of his working life,
no damages will be recoverable under this head”. (emphasis mine)
187. An award for loss of earning capacity is an award for a contingent future loss, in the event of
the Claimant losing his current job, where, as a result of the accident, he would then be at a
disadvantage on the labour market which he would not have been, but for the accident. This
award is usually made in circumstance where a Claimant is employed at the time of the
accident. However, an award is not dependent on whether the Claimant is employed. In
Great Northern Insurance Company Limited v Johnson Ansola40
, the Court of Appeal
stated:
“While damages for loss of earning capacity would generally arise where the plaintiff
is employed at time of the assessment, an award under that head is not dependent on
whether the plaintiff is employed. Such an award can apply in cases where there is
evidence of a disadvantage in the labour market, whether or not the plaintiff is
40
Civ App 169 of 2008
Page 56 of 60
employed. Smith v Manchester Corp. (1974) 17 KIR 1 and Moeliker v Reyrolle
[1957] 1ALL ER 9 are representative of situations where the plaintiff is employed at
the date of trial but may experience a handicap in the labour market as a consequence
of his injury if he were to lose his employment. These cases may be representative of
the most typical situation and the label of a Smith v Manchester award is best left to
those situations as arose in that case and in the Moeliker case (see Morgan v UPS
[2008] EWCA Civ. 377). It was however made clear in Cooke v Consolidated
Fisheries Ltd. [1977] I.C.R. 635 that it does not make any difference to the availability
of the award that the plaintiff was not actually unemployed at the time of the trial”.
188. The authors of McGregor on Damages 18th
Edition explained at paragraph 35-065 that an
award made in circumstances where a Claimant is found to experience a handicap on the
labour market is generally achieved without resort to multiplicand and multiplier in favour of
a lump sum approach. Further, this award, often referred to as the Smith v Manchester
Award, is made in circumstances, one of which is where the claimant may be working for a
different employer or working for himself and his earnings is different from his previous job,
but the work may be intermittent. In assessing the amount to be awarded for loss of earning
capacity, the courts have often been guided by the number of years of the Claimant’s pre-
injury earnings or alternatively, they have applied appropriate discounts to the multiplier in
assessing loss of future earnings.
189. In his report dated 23rd
February 2011, Dr. Maharaj estimated the Claimant's permanent
partial disability at 35%. He specifically stated that the Claimant should not work on heights,
climb, drive a motor vehicle or work near open machinery. Clearly, the experience the
Claimant gained working with the First Defendant as a Rigger since January 2003 would
serve little purpose in finding a job in that field, since he can no longer work as a Scaffolding
Rigger. Although the experience gained is not for a significantly long time, the fact remains
that it is the only experience the Claimant had in the working world.
190. Mr. Archie initially contended that the Claimant could have continued to work with the First
Defendant up to age 65. However in cross-examination, he admitted that having seen the
Page 57 of 60
report of Dr. Maharaj, he would not be prepared to offer employment to the Claimant or
someone with his complaints as a groundsman. This approach may be similar to that of other
potential employers. The Claimant’s injuries may be a deterrent to hiring him.
191. Although I accept that the Claimant may be able to find another job, his limited qualifications
and experience, as well as the effects of the injuries suffered in the accident, would limit the
types of jobs that he will be able to perform. In my opinion, the Claimant now faces a
considerable disadvantage in the competitive labour market in securing an alternative job. I
accept, therefore, that there is an existing and permanent reduction in his ability to earn a
living. However, this reduction in his ability to earn must be balanced against the fact that the
Claimant is quite young and has the potential to enhance his qualifications and be re-trained.
In addition, he has almost thirty working years ahead of him.
192. Scarman LJ in Smith v Manchester Corporation stated that it is inappropriate when
assessing loss of earning capacity to attempt to calculate any annual sum or to apply any
annual sum to so many years’ purchase. Instead, what the court must do is look at the
weakness so to speak “in the round”, take a note of the various contingencies, and do its best
to reach an assessment which will do justice to the Claimant.
193. In its submissions on loss of earning capacity, the Claimant referred to the cases of Peter
Seepersad, Angel Baldeo v Prestige Car Rentals Ltd., Dayal Moonsammy v Rolly
Ramdhanie and Capital Insurance41
and Bhawan Ramcharitar v the Attorney General
of Trinidad and Tobago. In Peter Seepersad, no separate award was made under the head
of loss of earning capacity. In Angel Baldeo the court ruled that there is no evidence that the
plaintiff would not be able to work or that her earning capacity would be affected. In Dayal
Moonsammy, the Court of Appeal ruled that the High Court Judge should not have awarded
loss of earning capacity as there was no evidence to prove that in the future, the Appellant
would not be able to carry out his functions at an acceptable level.
41
C.A.CIV.62/2003
Page 58 of 60
194. I have also been referred to the case of Cindy Kanhai v Miguel Mohammed and others42
in which an award of $150,000.00 was made for future pecuniary loss. Master Paray-Durity
was of the opinion that the Claimant who was 20 years old at the date of assessment had not
suffered a complete loss of earning capacity but would have suffered some disadvantage on
the labour market. In Andre Marchong v T&TEC, the Claimant was declared medically
unfit because of his inability to sit for long periods of time without pain which disqualified
him for continued employment as a clerk. The judge placed little reliance on the Claimant’s
contention that he was unable to find a suitable job and she formed the opinion that the
Claimant exaggerated his pain and resulting disability. A multiplier of 21 was used for the
Claimant who was 31 at the date of the assessment and an award of $377,241.26 was made
for loss of earning capacity. No separate award for loss of future earnings was made.
195. In the circumstances, considering the award that was made under the head of loss of future
earning, I am of the opinion that a reasonable award for loss of earning capacity to be
$75,000.00.
Deduction of Workmen's Compensation
196. It is to be noted that the Claimant received $13,403.28 in Workmen’s Compensation.
However Mr. Phillip Archie admitted in cross-examination that Mr. Gonzales did not receive
a lump sum payment but instead was paid this amount as paid sick leave after the accident
until June 2006. By law the Claimant is entitled to this amount which, if paid, ought to be
deducted from the award made. However because the Claimant’s workmen’s compensation
was considered paid sick leave from the time of the accident until June 2006, the Claimant
did not claim loss of earning for this period. Therefore, in the circumstance, I will not deduct
the amount received by the Claimant as workmen’s compensation from the award.
Interest
42
CV 2006 – 01087
Page 59 of 60
197. Section 25 of the Supreme Court of Judicature Act, Chap 4:01 gives the Court a discretion to
include in the sum for which judgment is given interest at such rate as it thinks fit on the
whole or any part of the debt or damages for the whole or any part of the period between the
date when the cause of action arose and the date of judgment. The common law position as
set out in Jefford v Gee43
for the award of interest is to compensate the litigant in personal
injuries cases, “for being kept out of money which ought to have been paid to him.” Counsel
for the Claimant submitted that the Court should award interest on the general damages at the
rate of 12% per annum from the date of the filing of the Claim Form and interest on the
special damages at the rate of 6% per annum from the date of the accident. In so doing,
Counsel relied on the judgment of Mendonca J. (as he then was) in Angel Baldeo v. Prestige
Car Rentals Ltd44
where an award of interest was made at a rate of 12% per annum on
general damages.
198. However, in the exercise of my discretion, I am of the opinion that the appropriate rate of
interest on general damages should not be based solely on the rate specified in the Remedies
of Creditors Act. Adopting a similar approach to that taken by this court in Sean Wallace v
The Attorney General of Trinidad and Tobago45
, I consider that the court is entitled to
take into account the prime lending rate that is applicable from time to time. This Court takes
judicial notice that the prime lending rate issued by the Central Bank of Trinidad and Tobago
as at July 22nd
2014 is 7.5%. In those circumstances I consider that an appropriate rate of
interest on the general damages should be 9%. I will also award 6 % on special damages.
The Order
The First Defendant is hereby ordered to pay to the Claimant the following amounts:
1) Special Damages in the sum of $111,707.00 together with interest thereon at the rate of 6%
per annum from 8th
October 2005 to date of judgement and 12% thereafter.
2) Pain and suffering and loss of amenities as a result of the injury in the amount of $450,000.00
together with interest thereon at the rate 9% per annum from 30th
September 2009.
43
(1970) AC 130 44
H.C.A. 442 of 2000 45
Claim No.: CV2008-04009
Page 60 of 60
3) Loss of future earnings in the sum of $1,065,532.00. This sum shall bear no interest.
4) Future medical expenses in the sum of $54,600.00. This sum shall bear no interest.
5) Loss of earning capacity in the sum of $75,000.00. This sum shall bear no interest.
Costs
199. In my opinion, the Claimant is entitled to an award of costs determined in accordance with
Rule 67.5 of Civil Proceedings Rules 1998 and not Rule 67.12. This Rule provides that the
costs payable should be based on the value of the claim which in the case of a claimant is the
amount agreed or ordered to be paid. Therefore, I will order the First Defendant to pay to the
Claimant the costs to be determined in accordance with Appendix B and based on the
amounts awarded, inclusive of interest: Leriche v.Francis Maurice46
.
Dated this 23rd
day of July 2014.
André des Vignes
Judge
46
Privy Council Appeal No 25 of 2004